Miscellaneous Briefs Vol. 2

    iC ELLAN Et

VOL. 2

B R I E F S







,





N o. 1 1 ,3 1 0
I N  T H E

United States Circuit Court of Appeals

A P P E A L  P R O M  T H E  D IS T R IC T  C O U R T  OP T H E  U N IT E D  STATE S 

FO R  T H E  S O U T H E R N  D IS T R IC T  OF C A L IF O R N IA .

MOTION AND BRIEF FOR THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT OF 

COLORED PEOPLE AS AMICUS CURIAE

T hurgood M arshall,
R obert L. Carter,

20 West 40th Street, New York, N. Y„ 
L oren M iller,

1105 East Vernon Avenue,
Los Angeles, California,

Counsel for the National Association 
for the Advancement of 
Colored People.

For the Ninth Circuit

W estminster S chool D istrict of 
Orange County , et al.,

Gonzalo M endez, et al.,

vs.
Appellants,

Appellees.

212 L a w y e r s  P ress, I n c ., 165 William St., N. Y. C.





I N D E X

Motion for Leave to File Brief as Amicus Curiae____  1

Brief for the National Association for the Advance­
ment of Colored People as Amicus C u r ia e .........3

Statement of the Case_________________    3

A r g u m e n t  :

I Classifications and Distinctions on the Basis of 
Race and Color Are Invalid under Our Funda­
mental L aw ____________________________________  5

II The Requirements of Due Process and the Equal 
Protection of the Laws Under the Fourteenth 
Amendment Cannot Be Achieved Under a System 
of Segregation _________________________________  10

III No Decisions of the United States Supreme Court 
Prevent This Court from Declaring Segregation in

PAGE

a State Public School System Unconstitutional__  20

Conclusion______________________________________  __ 31



11

Table of Cases.

Alston v. Norfolk School Bd., 112 F. (2d) 992 (C. C. A.
4th, 1940); cert. den. 311 U. S. 693 (1940) _________7, 25

Barney v. New York, 113 U. S. 430 (1904) ____________  5
Berea College v. Kentucky, 211 U. S. 45 (1908)________  29
Buchanan v. Warley, 245 U. S. 60 (1917) ___________  7, 25

Civil Rights Cases, 109 U. S. 1 (1893) ________________  7
Clarke v. Deckeback, 274 U. S. 392 (1927) ____________  26
Cummings v. Richmond County Bd., 175 U. S. 528 

(1899) ___?_____________________________ ______26,27,28

Esberg v. Bardaracco, 202 Cal. 110___________________ 5
Ex parte Virginia, 100 U. S. 339 (1880) ______________  5, 7
Ex parte Endo, 323 U .S. 283 (1944) ________________  7

Foster & Elan v. Neilson, 2 Pet. 253 (1829) ___________  8

Gondolfo v. Hartman, 49 Fed. 191 (S. D. Cal., 1892)_ S
Gong Lum v. Rice, 275 U. S. 78 (1927) __________ 28, 29, 30
Guin v. United States, 238 U. S. 347 (1915) ___________  7

Hill v. Texas, 316 U. S. 400 (1942)__________________ A 7
Hirabayashi v. United States, 320 U. S. 81 (1943) ____ 7
Home Telephone & Telegraph Co. v. Los Angeles, 227 

U. S. 278 (1913) ________________________ _________  5

Iowa-Des Moines Nat’l Bk. v. Bennett, 284 U. S. 239 
(1931) ___________________________________________ 5

Kenneth v. Chambers, 14 How. 38 (1852)_____________  8
Korematsu v. United States, 323 U. S. 214 (1944) _____ 7

Lane v. Wilson, 307 U. S. 268 (1939) _________________  7

PAGE



I ll

Missouri ex rel. Gaines v. Canada, 305 U. S. 337
(1938) _______ ______________________ 7, 25, 29, 30

Missouri v. Holland, 252 U. S. 416 (1920)_____________  8
Morgan v. Commonwealth of Virginia, — IT. S. —, Oct. 

term 1945 decided June 3, 1946 __________________  26

Neal v. Delaware, 100 U. S. 370 (1881) ______________ 7, 25
Nixon v. Condon, 286 U. S. 73 (1932) ________________ 7, 25

People v. Gallagher, 93 N. Y. 438 (1883) _______ Z___ 23, 29
Pierre v. Louisiana, 306 U. S. 354 (1939) ____________ 7,25
Plessy v. Ferguson, 163 U. S. 537 (1896)______23, 24, 25, 30

Roberts v. Boston, 5 Cush. (Mass.) 198 (1849) ______20,29

Screws v. United States, 88 L. Ed. 1039 (1945) ________  5
Smith v. Allwright, 321 U. S. 649 (1944) ______________ 7
Snowden v. Hughes, 321 U. S. 1 (1944) _____ ________  5
Steele v. Louisville & Nashville R. R. Co., 323 U. S. 192

(1944) __________________________________________  8
Strauder v. West Virginia, 100 U. S. 303 (1879) ___ 6, 7, 25

Truax v. Raich, 239 U. S. 33 (1915)__________________ 7, 25
Tunstall v. Brotherhood of Locomotive Firemen & En-

ginemen, 323 U. S. 210 (1944) ____________________  8
Twinning v. New Jersey, 211 U. S. 78 (1908) ________  6

United States v. Classic, 313 U. S. 299 (1941) ________ 5

Ward v. Flood, 48 Cal. 36 (1874) ___________________23, 29
Wren, Drummond, In the Matter of, Ontario Reports,

1945 ____________________________________________  9

Yick Wo. v. Hopkins, 118 U. S. 356 (1886) ___________ 7, 25
Yu Cong Eng. v. Trinidad, 271 U. S. 500 (1926) _____ 7, 25

PAGE



IV

Other Authorities.
PAGE

Biennial Surveys of Education in the United States
(1944) ___________________________________________ 15

Blose & Caliver, Statistics of the Education of Negroes 
(1944) ____________________________  ... 12.13,14,15,16

Cong. Globe Congress, 1st Session__________________  5

Flack, Adoption of the Fourteenth Amendment______  5, 6

Johnson, Patterns of Segregation (1943) ___ _________  18
Journal of Negro Education, Vol. 14 (1945) __________  17

Locke, Dilemma of Education, 4 Journ. Negro Educa­
tion 407, 408, 409______________________ ________ £  10

Myrdal, An American Delimma (1944) ________________ 18

Report of Bd. of Officers on Utilization of Negro Man­
power in Post-War Army (1946) __________ _____  17

Sterner, The Negro’s Share (1943) __________________  18
Sumner, Argument Against Constitutionality of Col­

ored Schools in the case of Sarah Roberts v. Boston 
(1849) ------------------------------------------------- 19,20,21,22,23

American Teachers Ass’n, The Black and White of 
Rejections for Military Service (1944) ____________  17



No. 11,310

IN  TH E

United States Circuit Court of Appeals

APPEAL PROM TH E  DISTBICT COURT OP TH E  U N ITED STATES 
FOB TH E  SOUTHERN DISTBICT OF CALIFOBNIA.

MOTION FOR LEAVE TO FILE BRIEF AS 
AMICUS CURIAE

To the Honorable, the Judges of the United States Circuit
Court of Appeals for the Ninth Circuit:

The undersigned, as counsel for and on behalf of the 
National Association for the Advancement of Colored 
People, respectfully move that this honorable Court grant 
leave to file the accompanying brief as Amicus Curiae.

The National Association for the Advancement of Col­
ored People is a membership organization which for the 
past thirty-five years has continuously advocated full citi­
zenship rights, both civil and political, for all American citi­
zens and has dedicated itself to work for the achievement 
of a functioning democracy as conceived by the founders

For the Ninth Circuit

W estminster S chool D istrict of 
Orange County , et al.,

G onzalo M endez, et al.,

vs.
Appellants,

Appellees,



2

of this Bepublic and for equal justice under the Constitution 
and laws of the United States. This Court, as will more 
fully appear in the accompanying brief, is here asked to 
determine whether the Federal Constitution prohibits a 
state from maintaining segregation on a racial basis in its 
public school facilities. This question is of supreme impor­
tance to the integrity of our national institutions and the 
vitality of our way of life, both of which are uncompromis­
ingly opposed to distinctions and differences based on con­
siderations of race, creed or national origin.

Movants have requested leave to file a brief Amicus 
Curiae in order to present written argument on this ques­
tion which is basic and fundamental to our concept of a 
classless democratic society in which race, creed and national 
origin are viewed as invalid and irrational criteria.

T hukgood M arshall 
B obert L. Carter 
L oren M iller

Counsel for the National Asso­
ciation for the Advancement of 
Colored People



No. 11,310

IN  TH E

United States Circuit Court of Appeals
For the Ninth Circuit

W estminster S chool D istrict of 
Orange County , et al.,

Appellants,
vs.

Gonzalo M endez, et al.,
Appellees,

appeal from the district court of the united states
FOR TH E SOUTHERN DISTRICT OF CALIFORNIA.

BRIEF FOR THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE AS 

AMICUS CURIAE

Statement of the Case

Gonzalo Mendez, et al., on behalf of some five thousand 
persons similarly situated of Mexican or Latin descent, 
filed a class suit, pursuant to Rule 23 of the Federal Rules 
of Civil Procedure, against the Westminster, Garden Grove 
and El Modeno School Districts and the Santa Ana 
City schools, all of Orange County, California. The com­
plaint alleges a concerted policy and design of class dis­
crimination against persons of Mexican or Latin descent 
of elementary school age by the defendant school agencies, 
in the conduct and operation of public schools of the afore­
said districts, which result in the denial of equal protec­
tion of the laws to petitioners and the class of persons

3



4

whom they represent. The respective defendant agencies 
have maintained a policy, custom and usage of excluding 
children or persons of Mexican or Latin descent from at­
tending, using, enjoying and receiving the benefits of the edu­
cation, health and recreational facilities of certain schools 
within their respective districts and school systems, and 
of requiring children or persons of Mexican or Latin de­
scent to attend certain schools in the aforesaid districts 
reserved for and attended solely and exclusively by per­
sons of this particular racial lineage.

At the same time, defendant school agencies are pur­
suing a policy, custom and usage of maintaining schools 
for the exclusive attendance of persons or children pur­
portedly of the white or Anglo-Saxon race. Children of 
Mexican or Latin extraction are barred and excluded from 
attending any other school in their district or system ex­
cept such schools as are exclusively maintained for them 
solely on the basis of race and national origin.

Although it was stipulated that as between the schools 
maintained for those of non-Mexican extraction and the 
schools maintained for those of Mexican and Latin origin, 
no inequalities existed in the technical facilties, textbooks, 
and courses of instruction, the court below considered the 
separation itself violative of the equal protection of the 
laws as required by the Federal Constitution on the grounds 
that equality cannot be effected under a dual system of 
education. “ A paramount requisite in the American sys­
tem of public education is social equality. It must be open 
to all children by unified school association regardless of 
lineage.”  This conclusion is clearly correct and is de­
manded by the Constitution and laws of the United States. 
It is to this point that this brief Amicus curiae will be ad­
dressed.



5

A R G U M E N T

I

Classifications and Distinctions on the Basis of 
Race and Color Are Invalid Under 

Our Fundamental Law.

1.

We assume that there can be no valid objection to the 
designation of defendants’ acts herein as those of the state 
within the meaning of the Fourteenth Amendment, since 
clearly defendants are administrative agents of the state 
charged with the performance of an important state func­
tion.1

This question has been thoroughly and adequately ana­
lyzed by the court below, and its decision that the action 
of the various defendant boards involved constituted state 
action is amply supported by overwhelming constitutional 
authority.1 2

The Fourteenth Amendment to the Federal Constitution 
was designed primarily to benefit the newly freed Negro,3

1 Article IX, Constitution of California, Esberq v. Bardaracco, 202 
Cal. 110.

2 Ex parte Virginia, 100 U. S. 339 (1880) ; Home Telephone and 
Telegraph Company v. Los Angeles, 227 U. S. 278 (1913); Iowa- 
Des Moines National Bank v. Bennett, 284 U. S. 239 (1931) ; United 
States v. Classic, 313 U. S. 299 (1941); Snowden v. Hughes, 321 
U. S. 1 (1944); Screws v. U. S., —  U. S. — , 88 L. Ed. 1039 (1945). 
But cf. Barney v. New York, 113 U. S. 430 (1904).

3 See Flack, Adoption of the Fourteenth Amendment (1908). See 
also Cong. Globe Congress, 1st Session.



6

but its protection lias been extended to all persons within 
the reach of our laws. By its adoption Congress intended to 
create and assure full citizenship rights, privileges and 
immunities for this minority as well as to provide for their 
ultimate absorption within the cultural pattern of American 
life.

As was said in Strauder v. West Virginia, 100 U. 8. 303, 
307 (1879), one of the earlier cases in which the United 
States Supreme Court was called upon to interpret the 
intent and meaning of this Amendment:

“ What is this but declaring that the law in the States 
shall be the same for the black as for the white; that 
all persons, whether colored or white, shall stand equal 
before the laws of the States and, in regard to the 
colored race, for whose protection the Amendment was 
primarily designed, that no discrimination shall be 
made against them by law because of their color! The 
words of the Amendment, it is true, are prohibitory, 
but they contain a necessary implication of a positive 
immunity, or right, most valuable to the colored race— 
the right to exemption from unfriendly legislation 
against them distinctively as colored; exemption from 
legal discrimination, implying inferiority in civil so­
ciety, lessening the security of their enjoyment of the 
rights which others enjoy, and discriminations which 
are steps towards reducing them to the condition of a 
subject race.”

Although the United States Supreme Court has un­
doubtedly limited the scope of the Fourteenth Amendment 
more narrowly than its framers intended,4 from its adop­
tion to the present, the decisions have almost uniformly

4 Flack, op. cit. supra, note 3. Twinning v. New Jersey, 211 U. S. 
78 (1908).



7

considered classifications and discrimination on the basis 
of race as contrary to its provisions. Ex parte Virginia, 
100 U. 8. 339 (1879); Strauder v. West Virginia, supra; 
Civil Rights Cases, 109 U. S. 1 (1883); Neal v. Delaware, 
100 U. S. 370 (1881); Tick Wo. v. Hopkins, 118 U. S. 356 
(1886); Buchanan v. Warley, 245 U. S. 60 (1917); Truax v. 
Raich, 239 U. 8. 33 (1915); Yu Cong Eng. v. Trinidad, 271 
U. S. 500 (1926); Nixon v. Condon, 286 U. S. 73 (1932); 
Pierre v. Louisiana, 306 U. S. 354 (1939); Missouri ex red 
Gaines v. Canada, 305 U. S. 337 (1938); Hill v. Texas, 316 
U. 8. 400 (1942). Thus the acts of state agencies which 
have effected distinctions on racial lines have been struck 
down as violative of its provisions. Yick Wo. v. Hopkins, 
supra; Yu Cong Eng. v. Trinidad, supra; Truax v. Raich, 
supra. Under a variety of factual circumstances our 
highest Court has repeatedly held racial criteria arbitrary 
and unconstitutional. Strauder v. West Virginia, supra; 
Yick Wo. v. Hopkins, supra; Truax v. Raich, supra; Nixon 
v. Condon, supra; Guin v. United States, 238 U. 8. 347 
(1915); Lane v. Wilson, 307 U. S. 268 (1939); Pierre v. 
Louisiana (supra); Alston v. Norfolk School Board, 112 F. 
(2d) 992 (C. C. A. 4th, 1940); cert, den., 311 U. S. 693 
(1940); Smith v. Allwright, 321 U. S. 649 (1944).

Despite the absence of a requirement for equal protection 
of the laws in the Fifth Amendment, even our national gov­
ernment is prohibited from making distinctions on the basis 
of race and color since such distinctions are considered arbi­
trary and inconsistent with the requirements of due process 
except where national safety and the perils of war render 
such measures necessary. Hirabayashi v. United States, 
320 U. S. 81 (1943); Korematsu v. United States, 323 U. S. 
214 (1944); Ex parte Endo, 323 XT. S. 283 (1944); and see



8

Steele v. Louisville £  Nashville R. Co., 323 U. S. 192 (1944); 
Tunstall v. Brotherhood of Locomotive Firemen & Engine- 
men, 323 IT. S. 210 (1944).

Thus, since the Civil War a body of constitutional law 
has developed which proscribes both our national and state 
governments from making distinctions and classifications 
and from discriminating on the basis of race, color or na­
tional origin.

2.

The United States has duly ratified and adopted the 
Charter of the United Nations as a part of our fundamental 
law. Under its provisions, and specifically by virtue of 
Article 55c thereof, our government is obligated to pro­
mote “ uniform respect for, and the observance of, human 
rights and fundamental freedoms for all without distinc­
tions as to race. . .

Previous to this our national government on March 6, 
1945 signed the Act of Chapultepec in Mexico City in which 
we, along with the Latin American nations, undertook “ to 
prevent . . .  all that may provoke discrimination among 
individuals because of racial or religious reasons.”  Inter­
national obligations, such as these, are declared by Article 
VI, Clause 2 of the Federal Constitution to be a part of our 
fundamental body of law and as such the supreme law of 
the land. Foster & Elan v. Neilson, 2 Pet. 253, 314 (1829): 
Kenneth v. Chambers, 14 How. 38 (1852); Gondolfo v. Hart­
man, 49 Fed. 191 (S. D. Cal., 1892); Missouri v. Holland, 
252 U. S. 416 (1920).



9

A Canadian decision In the Matter of Drummond Wren, 
rendered in Ontario on October 29, 1945 involving a restric­
tive covenant running against persons of Jewish extraction, 
provides an instructive precedent on this point. In declar­
ing the covenant invalid the Court relied heavily on the 
obligations that all member nations in adopting the United 
Nations Charter had assumed to prohibit racial discrimi­
nation and distinctions within their boundaries.

Since the Herbert Hoover Administration, we have been 
pursuing the policy of the “ good neighbor”  in our rela­
tions with other nations in the Americas. We have at­
tempted to forge an iron ring of solidarity among the na­
tions in this hemisphere by means of peaceful association 
on the basis of equality. Yet if our aims are to be accom­
plished, it is essential that persons of Latin and Mexican 
origin be accorded on our domestic scene the equality which 
we profess to accord Mexico and the Latin American na­
tions in our international relations. We cannot preach 
equality abroad successfully unless, in actuality, we effect 
such equality at home.

3.

Segregation on a racial basis in the public school system 
is a type of arbitrary and unreasonable discrimination which 
should be forbidden under our laws. Both our national con­
stitution and the terms of our international commitments 
demand that this Court invalidate the acts of defendants in 
setting aside in their respective jurisdictions separate 
schools for children of Mexican or Latin origin.



10

II

The Requirements of Due Process and the Equal 
Protection of the Laws Under the Fourteenth 
Amendment Cannot Be Achieved Under a 

System of Segregation.
The equality demanded by the Constitution and laws of 

the United States cannot be realized under a system of 
segregation. As one eminent authority, Dr. Alain Locke, 
declared: 5

“ In the first place few if any communities can afford 
the additional expense of entirely equal accommoda­
tions, and it would require as much and the same kind 
of effort at the removal of the social bias of the com­
munity and the reform of its conscience to secure gen­
eral admission of the principle of complete equity as 
to secure the abolition of the dual system. Up to a 
certain point, communities will pay a price for preju­
dice, but not such an exhorbitant price as complete eco­
nomic equality requires. Assuming that such parity 
could be reached and consistently maintained, the moral 
damage of the situation of discrimination would still 
render the situation intolerable. But the argument can 
and will doubtless be settled or fought out on the prac­
tical plane of the school budget. Whenever the stand­
ards of Negro public schools are raised to the point 
that the budget expense approaches parity, there will 
be less resistence to educational segregation, for one 
of the main but concealed reasons for discrimination 
lodges in the idea that the Negro is not entitled to the 
same educational facilities as the white community.”

Racial segregation in education originated as a social 
weapon to keep the Negro citizen in an inferior status to 
that of the white. As an instrument of public policy it

3 Locke, Dilemma of Segregation, 4 Journal of Negro Education, 
407, 408, 409.



11

serves the same ends. The mere fact that one particular 
school in one particular area provides equal facilities de­
spite the fact of segregation, does not invalidate this state­
ment. In fact, the existence of such instances is doubly 
menacing because they can be pointed to as justification for 
the existence of segregation. The fact is that where segre­
gation is a general pattern it is an instrument to enforce 
inequality.

The areas of this country in which the educational oppor­
tunities of the Negro are the smallest are the same areas 
in which strict segregation, in schools as well as in every 
other phase of social life, is enforced with the sanction of 
the laws of the sovereign states. That a clear correla­
tion exists between segregation and the deprivation of 
equal educational opportunities will be demonstrated below.

This correlation is no accident. Discrimination is the 
direct result of segregation. To decree or to enforce segre­
gation in the school system, between any two racial groups, 
whether by state law, local ordinance or permissive group 
action, is to grant to the administrative official or other 
governing group the poiver to discriminate. By enforcing 
the separation of facilities, the state has the means, the 
wherewithal and the weapon -with which to favor the white 
man and to slight the minority group it sets apart.

It is this power which is the crux of the matter. It mat­
ters not that in an isolated case or in a number of isolated 
cases there are as many washrooms for segregated children 
as for white. Since all available experience, all existing 
data prove conclusively that where the power is granted it 
is uniformly used for the purpose of discrimination, it is 
important that such power not be granted freely.

The record of experience is equally clear in this case. 
The educational record and standards of the State of Cali­



12

fornia are extremely high—they are a model for most of 
the states in this country. Yet if in California the prin­
ciple of segregation is permitted to remain, those standards 
will most certainly fall, at least insofar as they relate to 
those of Mexican and Latin American descent or to any 
other segregated minority. This will follow just as cer­
tainly as it is now the fact that the worst educational dis­
crimination exists in those states in which segregation is 
already a matter of policy or of law.

In seventeen states and the District of Columbia,6 racial 
segregation in education is a universal policy. All these 
states maintain separate schools for Negroes and whites. 
The educational record of these states clearly shows the 
result of this policy.

This result is applicable not only to one particular 
minority, but to any group subjected to the practices of 
racial segregation—be that group Negro, Mexican, Latin 
American or Japanese in its origins. We use the Negro 
as an example only, in this particular case, because the 
consequences of a policy of racial segregation can be most 
clearly demonstrated by reference to the historical and 
cultural record of the one area in this nation where it is 
practiced on a large scale—the South.

The taxpayers’ dollar for public education in the South 
was so appropriated as to deprive the Negro schools of their 
proportionate share of federal, state, county and mu­
nicipal tax funds. The average expense per white pupil in 
nine Southern states in 1939-1940 was almost 212% greater 
than the average expense per Negro pupil.7

6 Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, 
Louisiana, Maryland, Mississippi. Missouri, North Carolina, Okla­
homa, South Carolina, Tennessee, Texas, Virginia, West Virginia, 
and the District of Columbia.

7 Statistics of the Education of Negroes: A Decade of Progress,
by David T. Blose and Ambrose Caliver, 1944, Part I, p. 6, Table 8.



Reproduced in part from Table 8 of Statistics of the Education of Negroes: A Decade of
Progress, by David T. Blose and Ambrose Caliver (1944), Part I, p. 6

Current expense per pupil Percent cost per
State or in average daily attendance *  white pupil is greater

District of 1939-40 than that per Negro pupil
Columbia White Negro 1939-40

Total...................................................  $58.69 $18.82 211.8
Alabama ...........................................................  47.59 14.63 225.3
Arkansas ..............................    36.87 13.73 168.5
Delaware...........................................................  . . . .  . . . .  . . . .
Dist. of Col......................................................... . . . .  . . . .  . . . .
Florida .............................................................  69.76 26.95 158.8
Georgia .............................................................  55.56 16.95 227.8
Kentucky...........................................................  . . . .  . . . .  . . . .
Louisiana .........................................................  77.11 20.49 276.3
Maryland .........................................................  . . . .  . . . .
Mississippi .......................................................  52.01 7.36 606.6
Missouri ...........................................................  . . . .  . . . .  . . . .
North Carolina ...............................................  46.02 28.30 62.6
Oklahoma .........................................................  . . . .  . . . .  . . . .
South Carolina .................................................  57.33 15.42 271.8
Tennessee .........................................................  . . . .  . . . .  . . . .
Texas ............................................................... 72.72 28.49 155.2
Virginia.............................................................  . . . .  . . . .  . . . .
West Virginia...................................................  . . . .  . . . .

* Less interest.



14

The preceding table shows the results of this policy of 
racial segregation in education insofar as such a simple 
criterion of equal citizenship rights as proportionate alloca­
tion of tax monies is concerned. While the average ex­
penditure per Negro pupil was $18.82 and the same average 
per white pupil was $58.69, in specific instances the depriva­
tion of the Negro citizen is even greater. In Mississippi, 
the expense per white pupil was 606.6% greater than the 
expense per Negro pupil. A comparatively progressive 
state like North Carolina shows a discrepancy of 62.6% ! 8

The expenditure per pupil is only one index, although 
the best single one, to the quality of education. Others are 
the number of pupils per teacher, the length of the school 
term, and the number of days each pupil is enabled to attend 
school (an important factor in rural areas where pupils de­
pend on free public transportation). The salaries teachers 
are paid is also important in determining the calibre of per­
sonnel and hence the quality of education.

8 Ibid.



Again the record of those states where segregation is part 
of public educational policy clearly demonstrates the in­
equities and the second-class citizenship such a policy cre­
ates. These states in 1939-1940 provided one teacher for 
every 28.6 white pupils, but one teacher for every 36.1 
Negroes.** And the average salary for a white teacher was 
$1,046 a year, while the average Negro teacher’s salary was 
only $601.9 10 * The percentage of Negroes between the ages 
of 5 and 24 attending schools was 53.1,11 but Negro absences 
were 1.2 times as high as absences for whites.12 The aver­
age length of the school term in 1941-42 in these states was 
171 days for whites, but only 156 days for Negroes.13

9 Biennial Surveys of Education in the United States. Statistics of 
State School Systems, 1939-40 and 1941-42 (1944) p. 37.

10 Statistics of the Education of Negroes: A Decade of Progress, 
by David T. Blose and Ambrose Caliver (1944), Part I, p. 6, Table 7.
' 11 Ibid, p. 5, Table 5.
12 Biennial Surveys, op. cit., supra, p. 36.
13 Ibid.



Reproduced in part from Table 7 of Statistics of the Education of Negroes: A  Decade of
Progress, by David T. Blose and Ambrose Caliver (1944), Part I, p. 6

Average salary per
Percent white instruc- Negro pupil- 
tional salaries is greater teacher load

State or member of instruc- than Negro instruc- in elementary
District of tional staff 1939-40 tional salaries and high schools
Columbia White Negro 1939-40 1939-40

Total.................................. ...............  $1,046 $ 601 74 38
Alabama .......................................... ...............  878 412 113 42
Arkansas .......................................... ...............  636 375 70 44
Delaware.......................................... ...............  1,715 1,500 14 29
Dist. of Col........................................ ...............  2,350 2,350 34
Florida ............................................ ...............  1,148 585 96 31
Georgia .............................................. .............  924 404 129 39
Kentucky............................................ .............  853 522 63 27
Louisiana .......................................... .............  1,197 509 135 42
Maryland .......................................... .............  1,689 1,446 17 35
Mississippi ........................................ .............  776 232 234 46
Missouri ............................................ .............  1,153 1,258 8 32
North Carolina ................................ .............  1,027 737 39 37
Oklahoma .......................................... .............  1,016 993 2 28
South Carolina .................................. .............  953 371 157 38
Tennessee .......................................... .............  909 580 57 37
Texas .........
Virginia.......
West Virginia

1,138 705
987 605

1,189 * 885

61 34
63 35

27

* Based on 1933 salaries the last available.



17

The results of such educational inequities brought about 
as a consequence of the policy of segregation has been to 
deprive the individual Negro citizen of the skills necessary 
to a civilized existence, the Negro community of the leader­
ship and professional services it so urgently needs, and the 
nation as a whole of the full potential embodied in the 
intellectual and physical resources of its Negro citizens.

In the most critical period of June-July 1943, when the 
nation was crying for manpower, 34.5% of the rejections 
of Negroes from the armed forces were for educational de­
ficiency. Only 8% of the white selectees rejected for mili­
tary service failed to meet the educational standards.14

The official War Department report on the utilization of 
Negro manpower in the postwar Army says that “ in the 
placement of men who were accepted, the Army encountered 
considerable difficulty. Leadership qualities had not been 
developed among the Negroes, due principally to environ­
ment and lack of opportunity. These factors had also 
affected his development in the various skills and crafts.” 15

The result of racial inequalities in education has also 
been to deprive the Negro community of the professional 
services it desperately needs. In 1940 there was one phy­
sician for every 735 white citizens, but only one for every 
3,651 Negroes.16 And one lawyer served 670 whites, but 
there was only one lawyer for every 12,230 Negro citizens.17

One consequence which has not been stressed because it 
would seem to be almost obvious in the preceding eom-

14 The Black and White of Rejections for Military Service. Mont­
gomery, Ala., American Teachers Association, 1944, p. 5.

15 Report of Board of Officers on Utilization of Negro Manpower 
in the Post-War Army (February 1946), p. 2.

10 Journal of Negro Education (1945), Vol. XIV, Fall number, p. 
511.

17 Ibid, p. 512.



18

parisons is that maintenance of segregated schools puts an 
additional burden on the white pupil as well as the Negro 
in these states. The additional cost of two school systems, 
two pupil transportation systems, and all the other dupli­
cation involved in maintaining segregation results in a 
drain on the public treasury which cannot but be reflected 
in the deprivation of both Negroes and whites.

All these statistics are an index to the consequences of 
segregation in education as a public policy. And, while they 
do indicate the social and economic inequities such a policy 
creates and perpetuates, they cannot do more than suggest 
one of the most important inequities of all—the effect of 
such a policy on the attitudes of those whom it most di­
rectly affects, the minority citizen, be he Negro, Mexican, 
Latin American, or Japanese.

Even in the hypothetical case where a segregated school 
offers better facilities than the white school, the fact that 
such segregation is compulsory can have a dangerous effect 
on the citizenship of that community and deprive the state 
of the full value of the minority group’s citizenship. It 
was never the intent of any law or decision to create a situ­
ation which inevitably becomes the breeding-ground for 
criminality and dangerous anti-social tendencies. Yet the 
effect of segregation on the minority citizen sometimes 
results in the creation of just such an attitude—a feeling 
of “ second-class citizenship”  which expresses itself in 
criminality and rebellion against constituted authority.18

18 See Sterner, The Negro’s Share (1943), Chaps. 9 & 10; John­
son, Patterns of Segregation (1943), Part II, p. 231 et seq., Myrdal. 
An American Dilemma (1944), Chaps. 28, 29, 30 and also Chaps. 
24-27.



19

The segregated citizen cannot give his full allegiance to 
a system of law and justice based on the proposition that 
“ all men are created equal”  when the community denies 
that equality by compelling his children to attend separate 
schools. Nor can the white child learn this fundamental 
of American citizenship when his community sets a contra­
dictory example.

Educational segregation creates still another barrier to 
American citizenship. It promotes racial strife by teach­
ing the children of both the dominant and minority groups 
to regard each other as something different and apart. And 
one of the great lessons of human history is that man tends 
to fear and hate that which he feels is alien.

It is essential for the successful development of our 
country as a nation of free people that the sympathies and 
tolerance which we wish practiced in later life be fostered 
in the classroom. “ And since according to our institutions, 
all classes meet, without distinction, in the performance of 
civil duties, so should they all meet, without distinction of 
color, in the school, beginning there those relations of 
equality which our Constitution and laws promise to all.” 18 19

The statistics show that segregation in our public schools 
has failed to provide the equality required. This has been 
so, primarily because segregation itself evidences a color- 
caste attitude and a feeling on the part of those who en­
force it that the group set apart has inferior character­
istics which justify his separation from the majority. 
It requires a duplication of facilities which makes equality 
in terms of economics all but impossible. Further, even

18 Argument of Charles Sumner Esq., Against the Constitution­
ality of Colored Schools in the case of Sarah C. Roberts v. Boston,
1849, pp. 29-30.



2 0

if there were no statistics or if it were economically pos­
sible for segregation and equality in terms of school facili­
ties to coexist, at the very core of our system is a doctrine 
of equality without distinction of race or color. If this be 
true, and it is, then segregation here must be invalidated as 
are classifications and distinctions in other areas of our 
national life.

Ill
No Decisions of the United States Supreme 
Court Prevent This Court from Declaring 
Segregation in a State Public School System 

Unconstitutional.

Prior to the adoption of the Fourteenth Amendment a 
case arose in the Supreme Court of Massachusetts which 
was destined to have considerable influence in the develop­
ment of American law. The case, Roberts v. City of Bos­
ton,2U involved the constitutionality of the maintenance of 
separate schools for Negroes in the City of Boston apart 
from the regular common school. Sarah C. Roberts, a 
Negro, filed suit to force the school officials to admit her in 
the regular common school and thereby raised the question 
of the constitutionality of the segregated system. Charles 
Sumner represented petitioner and argued the cause before 
the Massachusetts Court. In arguing that the maintenance 
of a racially segregated school system was violative of the 
state constitution, Mr. Sumner said: 20 21

“ The equality which was declared by our fathers in 
1776, and which was made the fundamental law of

20 S Cush. (Mass.) 198 (1849).
21 Charles Sumner, op. cit, supra, note 19 at p. 10.



21

Massachusetts in 1780, was equality before the law. 
Its object was to efface all political or civil distinctions, 
and to abolish all institutions founded upon birth. All 
men are created equal, says the Declaration of Inde­
pendence. ‘All men are born free and equal’, says the 
Massachusetts Bill of Rights. These are not vain 
words. Within the sphere of their influence no person 
can be created, no person can be born, with civil or 
political privileges, not enjoyed equally by all his fellow 
citizens, nor can any institution be established recog­
nizing any distinctions of birth. This is the great 
charter of every person who draws his vital breath 
upon this soil, whatever may be his condition, and who­
ever may be his parents. He may be poor, weak, 
humble, black—he may be of Caucasian, of Jewish, of 
Indian, or of Ethiopian race—he may be of French, of 
German, of English, of Irish extraction—but before the 
Constitution of Massachusetts all these distinctions dis­
appear. He is not poor, or weak, or humble or black— 
nor Caucasian, nor Jewr, nor Indian, nor Ethiopian—nor 
French, nor German, nor English, nor Irish; he is a 
Man,—the equal of all his fellowunen. . . . The State, 
imitating the divine justice, is no respecter of persons.

“ Here nobility cannot exist, because it is a privilege 
from birth. But the same anathema which smites and 
banishes nobility, must also smite and banish every 
form of discrimination founded on birth.

“ The separation of children in the Public Schools 
of Boston, on account of color or race, is in the nature 
of Caste, and is in violation of Equality.

“ We abjure nobility of all kinds; but here is a no­
bility of the skin. We abjure all hereditary distinc­
tions; but here is an hereditary distinction, founded 
not on the merit of the ancestors, but on his color. 
We abjure all privileges derived from birth; but here



22

is a privilege which depends solely on the accident, 
whether an ancester is black or white. We abjure all 
inequality before the law; but here is an inequality 
which touches not an individual, but a race. We revolt 
at the relation of caste; but here is a caste which is 
established under a Constitution, declaring that all men 
are born equal. ”  22

Defendant contended that no constitutional requirements 
had been contravened by requiring Negro children to attend 
schools established exclusively for them inasmuch as com­
petent instruction was provided, and facilities equal to those 
in the regular common school were offered in the schools 
provided for Negroes. To this contention Mr. Sumner an­
swered :

“ The second [answer] is that the schools are not 
equal . . .  it is the occasion of inconveniences to the 
colored children and their parents, to which they would 
not be exposed, if they had access to the nearest public 
schools, besides inflicting on them the stigma of Caste. 
Still further, and this consideration cannot be neglected, 
the matters taught in the two schools may be precisely 
the same; but a school, exclusively devoted to one class, 
must differ essentially, in its spirit and character, from 
that public school known to law, where all classes meet 
together in equality. It is a mockery to call it an 
equivalent.

“ But there is yet another answer. Admitting that it 
is an equivalent, still the colored children cannot be com­
pelled to take it. Their rights are Equality before the 
law; nor can they be called upon to renounce one jot 
of this. They have an equal right with white children 
to the general public schools. A separate school, though 
well endowed, would not secure to them that precise

22 Ibid, at p . 16.



23

Equality, which they would enjoy in the general public 
schools. The Jews in Rome are confined to a particular 
district, called the Ghetto. In Frankfort they are con­
demned to a separate quarter, known as the Jewish 
quarter. It is possible that the accommodations al­
lotted to them are as good as they would be able to 
occupy, if left free to choose through Rome and Frank­
fort; but this compulsory segregation from the mass of 
citizens is in itself an inequality which we condemn with 
our whole souls. It is a vestige of ancient intolerance 
directed against a despised people. It is of the same 
character with the separate schools in Boston.”  23

The Court, despite the persuasiveness of this i reasoning 
decided the case against petitioner and held that - separate 
schools for Negroes could be maintained consistent with 
the Constitution of the state which declared that, all men 
were equal before the law without distinction of race and 
color.

Subsequent to this decision and to the adoption of the 
Fourteenth Amendment, two other states upheld the right 
of the state to segregate the races in their public school 
systems, as not contravening the state or federal Constitu­
tion as long as the separate facilities maintained for the 
minority were equal to those set aside for the dominant 
race.24

In 1896 the United States Supreme Court in Plessy v. 
Ferguson, 163 U. S. 537, was faced with the necessity of 
determining the constitutionality of a Louisiana statute 
which required railroads to provide equal but separate

23 Ibid, at p p . 2 4 -2 5 .
24 Ward v . Flood, 4 8  C al. 3 6  ( 1 8 7 4 ) ;  People v . Gallagher, 9 3  N . Y .  

4 3 8  ( 1 8 8 3 ) .



24

coach accommodations for the white and colored passengers. 
The Court held the statute constitutional as a valid exercise 
of the state’s authority on grounds that the Fourteenth 
Amendment was satisfied as long as the separate accom­
modations were equal and cited the three state cases, supra, 
to support its conclusion. With this decision the “ equal 
but separate doctrine”  became a part of our constitutional 
law but only with regard to carrier accommodations.

Mr. Justice H a r l a n  exposed the fallacious basis of the 
Court’s reasoning in his dissent and set forth clearly the 
real issues involved in a separation or classification by a 
state agency on a racial basis at pages 554, 557:

“ In respect of civil rights, common to all citizens, 
the Constitution of the United States does not, I think, 
permit any public authority to know the race of those 
entitled to be protected in the enjoyment of such rights. 
Every true man has pride of race, and under appro­
priate circumstances, when the rights of others, his 
equals before the law, are not to be affected, it is his 
privilege to express such pride and to take such action 
based upon it as to him seems proper. But I deny that 
any legislative body or judicial tribunal may have re­
gard to the race of citizens when the civil rights of 
those citizens are involved. Indeed such legislation as 
that here in question is inconsistent, not only with that 
equality of rights which pertains to citizenship, na­
tional and state, but with the personal liberty enjoyed 
by every one within the United States.

“ The white race deems itself to be the dominant race 
in this county. And so it is, in prestige, in achieve­
ments, in education, in wealth, and in power. So, I 
doubt not that it will continue to be for all time, if it 
remains true to its great heritage and holds fast to the



25

principles of constitutional liberty. But in view of 
the Constitution, in the eye of the law, there is in this 
country no superior, dominant, ruling class of citizens. 
There is no caste here. Our Constitution is color­
blind, and neither knows nor tolerates classes among 
citizens. In respect of civil rights, all citizens are 
equal before the law. The humblest is the peer of the 
most powerful. The law regards man as man, and 
takes no account of his surroundings or of his color 
when his civil rights as guaranteed by the supreme 
law of the land are involved. It is therefore to be 
regretted that this high tribunal, the final expositor 
of the fundamental law of the land, has reached the 
conclusion that it is competent for a state to regulate 
the enjoyment by citizens of their civil rights solely 
upon the basis of race.

“ The arbitrary separation of citizens, on the basis 
of race, while they are on a public highway, is a badge 
of servitude wholly inconsistent with the civil freedom 
and the equality before the law established by the 
Constitution. It cannot be justified upon any legal 
grounds. ’ ’

Plessy v. Ferguson constitutes a departure from the main 
current of constitutional law and cannot be brought in line 
with the other decisions of the United States Supreme 
Court which have almost uniformly considered classifica­
tions and distinctions on the basis of race contrary to our 
fundamental law. Yick Wo. v. Hopkins; Strauder v. West 
Virginia; Neal v. Delatvare; Truax v. Raich; Buchanan v. 
Warley; Nixon v. Condon; Smith v. Allwright; Alston v. 
Norfolk School Board; Yu Cong Eng. v. Trinidad; Missouri 
ex rel. Gaines v. Canada; Pierre v. Louisiana, supra.

Only with regard to carrier accommodations and recent 
war measures affecting citizens of Japanese extraction has



26

a different conclusion been reached. The latter measures 
were reluctantly upheld by the Court as measures neces­
sary for the safety of the United States during our late 
war with Japan.25 26

Plessy v. Ferguson has been followed by the Court only 
in cases regarding separate carrier accommodations.20 The 
Supreme Court has not yet specifically decided the question 
of whether a state may maintain separate schools for 
members of the various races without violating the consti­
tutional requirements of the Fourteenth Amendment.

In Plessy v. Ferguson, although the Court devotes a con­
siderable portion of its opinion to a recital of state cases 
in which racial segregation in schools has been approved, 
no question of schools was then before the Court. It had 
before it only the question of the constitutionality of en­
forced segregation of the races in railroad accommodations.

Subsequently in Cummings v. County Board of Educa­
tion of Richmond County, 175 U. S. 528 (1899) the question

25 C o m p a r e  Clark v . Deckeback, 2 7 4  U . S . 3 9 2  ( 1 9 2 7 )  w h e r e  the 
S u p re m e  C o u r t  u p h e ld  a  c ity  o r d in a n c e  r e q u ir in g  th e  lic e n s in g  o f  
p o o l  a n d  b illia rd  r o o m s  a n d  p r o h ib it in g  th e issu a n ce  o f  l ic e n se s  to  
a lien s. T h e  o r d in a n c e  w a s  su sta in ed  o n  g r o u n d s  that th ese  a ctiv itie s  
h a d  h a rm fu l a n d  v ic io u s  ten d e n c ie s  o f  w h ich  th e  C o u r t  t o o k  ju d ic ia l 
n o t ic e  a n d  th at re g u la tio n  a n d  p r o h ib it io n  o f  su ch  b u s in esses  w a s  n ot 
fo r b id d e n . In  th e  re g u la tio n  o r  c o n tr o l  o f  an a p p re h e n d e d  ev il, th e c ity  
c o u ld  c h o o s e  to  e x c lu d e  a lien s  as a c lass . H e r e  th e  a p p re h e n d e d  evil 
w a s  c o n s id e r e d  su ffic ie n t ly  g re a t  to  w a rra n t c o n tr o l  in  a n y  m a n n er  
c o n s id e r e d  re a so n a b le  b y  th e  c ity  a u th or itie s .

26 T h e  e ffe c t  o f  th e  d e c is io n  in  Plessy v . Ferguson a p p ea rs  to  h av e  
b een  c o n s id e r a b ly  w e a k e n e d  b y  th e  re ce n t U n ite d  S ta tes  d e c is io n  in 
Morgan v . Commonwealth of Virginia, O c t o b e r  te rm , 1945 , d e c id e d  
J u n e  3, 1943. F r o m  th at d e c is io n  it w o u ld  a p p e a r  th at if  th e  C o u rt  
fin d s  that e ith er th e ca rr ie r  o r  the p a sse n g e r  is  e n g a g e d  in  interstate 
c o m m e r c e , state statutes r e q u ir in g  th e se g re g a t io n  o f  th e  ra ces  w ill be 
c o n s id e r e d  a b u r d e n  o n  in tersta te  c o m m e r c e  a n d  th e r e fo r e  in v a lid .



27

presented was whether a school board which had suspended 
support of a high school for colored children for the pur­
pose of using the building for instruction in the lower 
grades without making any other provisions for high 
school instruction for Negroes, while at the same time main­
taining two white high schools, could be restrained from 
using public funds for the support of the white high schools 
until equal provision for the high school education of 
colored children had been provided. Said Mr. Justice H ar­
lan  who delivered the majority opinion at pages 543-544:

“ It was said at the argument that the vice in the 
common-school system of Georgia was the requirement 
that the white and colored children of the state be edu­
cated in separate schools. But we need not consider 
that question in this case. No such issue was made in 
the pleadings. Indeed, the plaintiffs distinctly state 
that they have no objection to the tax in question so 
far as levied for the support of primary, intermediate, 
and grammar schools, in the management of which the 
rule as to the separation of races is enforced. We must 
dispose of the case as it is presented by the record.”

Speaking' further of the decision of the school board to 
discontinue the high school for some sixty colored children 
in order to give primary school education to 300 colored 
children the Court said at pages 544, 545 of its opinion:

“ We are not permitted by the evidence in the rec­
ord to regard that decision as having been made with 
any desire or purpose on the part of the board to 
discriminate against any of the colored school children 
of the county on account of their race. But if it be 
assumed that the board erred in supposing that its 
duty was to provide educational facilities for the 300 
colored children who were without an opportunity in 
primary schools to learn the alphabet and to read and



2 8

write, rather than to maintain a school for the benefit 
of the 60 colored children who wished to attend a high 
school, that was not an error which a court of equity 
should attempt to remedy by an injunction that would 
compel the board to withhold all assistance from the 
high school maintained for white children.”

The Court finally concluded with this phrase:
“ We may add that while all admit that the benefits 

and burdens of public taxation must be shared by citi­
zens without discrimination against any class on ac­
count of their race, the education of the people in 
schools maintained by state taxation is a matter be­
longing to the respective states, and any interference 
on the part of Federal authority with the management 
of such schools cannot be justified except in the case 
of a clear and unmistakable disregard of rights secured 
by the supreme law of the land. We have here no such 
case to be determined; . . . ”

Later Gong Lum v. Rice, 275 U. S. 78 (1927) was decided 
by the Supreme Court. Here again no question of the 
constitutionality of segregation in public schools was before 
the Court. Martha Lum, a Chinese descendant and a resi­
dent of Mississippi, desired to attend the Rosedale Consoli­
dated High School but was refused admission to said school 
on the grounds that she was not a member of the Cau­
casian race. No school was maintained for the education of 
children of Chinese descent Petition for a writ of manda­
mus was filed to force school authorities to admit her to the 
Rosedale Consolidated High School, as the only school in 
the district available for her to attend since she was not a 
member of the colored race. Chief Justice T aft , speaking 
for the Court, said at page 85:

“ The question here is whether a Chinese citizen of 
the United States is denied equal protection of the laws



29

when he is classed among the colored races and fur­
nished facilities for education equal to that offered to 
all, whether white, brown, yellow, or black.”

In Berea College v. Kentucky, 211 U. S. 45 (1908) the 
question before the Court was the constitutionality of a 
state statute which made it unlawful for any person, corpo­
ration, or association to maintain or operate any college, 
school or institution where whites and Negroes were re­
ceived as pupils and imposed a fine of $1,000.00 for convic­
tions thereunder. Berea College, incorporated under the 
laws of Kentucky, was convicted and fined for violating the 
statute. The Court made no decision concerning the con­
stitutionality of the statute as applied to individuals who 
might violate its provisions. It merely looked at the situa­
tion with which it was presented, that involving a corpora­
tion, and said:

“ The statute is clearly separable, and may be valid as 
to one class, while invalid as to another. Even if it 
were conceded that its assertion of power over indi­
viduals cannot be sustained, still it must be upheld so 
far as it restrains corporations.”

The Court then went on to consider the power of the state 
to control the operation of a corporation and considered 
this statute a lawful exercise of the State’s reserved power 
over corporations. It left unanswered the question of the 
validity of the statute as applied to individuals.

The more recent case to come before the Supreme Court 
involving the question of education was Missouri ex rel 
Gaines v. Canada, supra. In that case, Gaines, petitioner, a 
Negro was refused admission to the School of Law in the 
State University- of Missouri. On the theory that this re­



30

fusal constituted a denial by the State of the equal protec­
tion of the laws, Gaines brought an action for mandamus to 
compel the curators of the university to admit him. The 
State court denied the writ and the Supreme Court reversed 
on the grounds that the State University was under an obli­
gation to admit Gaines since no provisions had been made 
in the State for the education of Negroes in law as had 
been provided for whites. Even in this case, however, no 
question of the constitutionality of the segregated system 
was before the Court. The Court then held that the State 
was under a duty to admit Gaines into the State Law School 
since it had made no provision for the education of Negroes.

The Supreme Court in Plessy v. Ferguson accepted the 
“ equal but separate doctrine”  but has limited its applica­
tion to carrier accommodations. Because of the language 
used, however, in subsequent cases it has been assumed that 
decisions have applied this theory to validate segregation 
in public schools.27 This, however, has not been the case, 
and in none of the decisions has this question actually been 
determined.

This Court, therefore, is not bound by decisions of the 
Supreme Court to validate a segregated school system. On

27 S e e  Gong Lum v . Rice, supra, at p a g e  85  w h e r e  th e  C o u r t  s a id : 
“ W h e r e  th is a n e w  q u e s t io n , it w o u ld  ca ll f o r  v e r y  fu ll a rg u m e n t and 
co n s id e r a t io n , bu t w e  th in k  th at it is th e  sam e q u e s t io n  w h ic h  has 
b een  m a n y  tim es  d e c id e d  to  b e  w ith in  th e co n st itu t io n a l p o w e r  o f  the 
state le g is la tu re  t o  se ttle  w ith o u t in te rv e n t io n  o f  th e  fe d e ra l cou rts  
u n d e r  th e  F e d e ra l C o n s t itu t io n . ’ ’ (C it e s  Roberts v . Boston, Ward v. 
blood, People v . Gallagher, supra a n d  o th e r  state c a s e s .)  A n d  the 
C o u r t 's  o p in io n  in  th e Gaines ca se , supra at p a g e  3 4 4 :  “ T h e  state
c o u r t  h as fu lly  r e c o g n iz e d  th e o b lig a t io n  o f  th e  S ta te  to  p r o v id e  
n e g r o e s  [ s ic ]  w ith  a d v a n ta g es  f o r  h ig h e r  e d u ca tio n  su b sta n tia lly  equal 
t o  th e a d v a n ta g es  a ffo r d e d  to  w h ite  stu d en ts . T h e  S ta te  h as s o u g h t to 
fu lfill th at o b lig a t io n  b y  fu r n is h in g  eq u a l fa c ilit ie s  in  sep a ra te  s ch oo ls , 
a  m e th o d  th e  v a lid ity  o f  w h ich  h as been  su sta in ed  b y  o u r  d e c is io n s .”



31

the contrary, it is required by other decisions discussed in 
the earlier part of this brief which are more in line with our 
principles and represent a major development under our 
laws, to strike down segregation in public schools since such 
discrimination contravenes our constitutional requirements.

Conclusion.

We have developed and practiced a theory of government 
which finds distinctions on racial grounds inimical to our 
best interests and contrary to our laws. Our Democracy is 
founded in an enlightened citizenry. It can only function 
when all of its citizens, whether of a dominant or of a mi­
nority group, are allowed to enjoy the privileges and 
benefits inherent in our Constitution. Moreover, they must 
enjoy these benefits together as free people without regard 
to race or color. It is clear, therefore, that segregation in 
our public schools must he invalidated as violative of the 
Constitution and laws of the United States.

Wherefore, the decision of the lower court should be 
affirmed.

Respectfully submitted,

T hurgood M arshall,
R obert L. Carter,

20 West 40th Street,
New York 5, N. Y.,

L oren- M iller,
1105 East Vernon Avenue,
Los Angeles, California,

Counsel for the National Associ­
ation for the Advancement of 
Colored People.









No. 11,310

IN  TH E

Inttrfc States (Eirrrnt Court of Kvpmls
FOR THE NINTH CIRCUIT

W estminster S chool D istrict of O range County , et al.,
Appellants,

vs.

G onzalo M endez, et al.,
Appellees.

APPEAL FROM  T H E  DISTRICT COURT OF T H E  U N ITED STATES 

FOR TH E  SOUTH ERN DISTRICT OF CALIFORNIA.

BRIEF FOR THE AMERICAN JEWISH CONGRESS AS 
AMICUS CURIAE

R e s p e c t fu l ly  su b m itted ,

W i l l  M a s l o w  
P a u l i  M u r r a y

2 1 2  W e s t  5 0 th  S tree t
N e w  Y o r k  19, N . Y .

A n n e  H . P o l l o c k

6 4 3 1  L in d e n h u r s t  A v e n u e
L o s  A n g e le s ,  C a lif .

Counsel for American Jewish Congress

A l e x a n d e r  H . P e k e l i s  
P r o fe s s o r ,  G ra d u a te  F a c u lty  
N e w  S c h o o l  f o r  S o c ia l  R e s e a r c h  
N e w  Y o r k ,  N .  Y .

Special Advisor



:
. . •:

,



I N D E X

Table of Cases and Authorities........................................ ii
Statement of the Case.........................................................  2

Scope of the Brief..................................... -...............  3
Argument
P oint One— Whenever a group, considered as “ in­

ferior” by the prevailing standards of a community, 
is segregated by official action from the socially 
dominant group, the very fact of official segregation, 
whether or not “ equal”  physical facilities are being 
furnished to both groups, is a humiliating and dis­
criminatory denial of equality to the group con­
sidered “ inferior” and a violation of the Constitu­
tion of the United States, and of treaties duly 
entered into under its authority.................................. 4

P oint Two—Whenever inhabitants of the United 
States are classified, for purposes of official action, 
according to their race, color, creed, national origin 
or ancestry, whether or not such classification is 
based on discriminatory social or legal notions of 
“ inferiority” or “ superiority” by the various groups, 
the very fact of official differentiation according to 
racial, religious or national criteria is an unreason­
able and inadmissible classification and a violation 
of the Constitution of the United States and of 
treaties entered into under its authority....................  27

P oint T hree— Segregation by official action of a State 
or its subdivisions of children of a more recent- 
immigrant foreign language group from children of 
less recent-immigrant English-speaking groups of 
Americans is inconsistent with the basic purposes, 
policies and provisions of the immigration and na­
turalization laws of the United States and therefore 
an unconstitutional interference with a valid Fed­
eral regulation ..............................................................  32

PAGE



11

TABLE OF CASES

Anderson v. Pantages Theatre Co., 114 Wash. 24, 194 
P. 813 (1921)...................................................... .... ........ 9, 20

Bailey v. Alabama, 219 U. S. 219 (1911)........................  8
Baldwin v. Franks, 120 U. S. 678 (1887)..........................  23
Bolden v. Grand Rapids Operating Co., 239 Mich. 318,

214 N. W. 241 (1927)......................................................  9
Chicago, R. I. & P. Ry. Co. v. Allison, 120 Ark. 54, 178

S. W. 401 (1915).......................................................... 21
Chirac v. Chirac, 2 Wheat, (U. S.) 259 (1817)................. 32
Collins v. Oklahoma State Hospital, 76 Okla. 229, 184 

P. 946 (1919)............. ................ .......... ....... ...............  20
Connor v. Board of Commissioners of Logan County, 

Ohio, 12 F. (2d) 789 (S. D. Ohio, 1926).......................  8
Crosswaith v. Bergin, 95 Colo. 241, 35 P. (2d) 848 

(1934) ............................................................................  9

Dobbins v. Los Angeles, 195 U. S. 223 (1904)................... 8
Donnell v. State, 48 Miss. 661 (1873).............................. 9
Drummond Wren, Re, Ontario Reports, 778 (1945)...  24
Ferguson v. Gies, 83 Mich. 358, 46 N. W. 718 (1890).....  9
Flood v. News and Courier Co., 71 S. C. 112, 50 S. E.

637 (1905).__,t...................................................... .........  19

Foster v. Neilson, 2 Pet, (IT. S.) 253 (1829)................... 24
Geofroy v. Riggs, 133 IT. S. 258 (1890)......................... 24, 25
Guinn v. U. S., 238 U. S. 347 (1915)...... .........................  7
Gulf Colorado & Sante Fe Ry. v. Ellis, 165 IT. S. 150 

(1897) __________       29
Hanenstein v. Lynham, 100 II  S. 483 (1880)________  24

PAGE



I l l

PAGE

Henderson v. Mayor, 92 IT. S. 259 (1875).................. . 8
Hirabayashi v. IT. S., 320 IT. S. 81 (1943)......................  28
Holden.v. Joy, 17 Wall. (IT. S.) 211 (1872)..................... 24
Jones y. Kehrlein, 49 Cal. App. 646, 194 P. 55 (1920)...  9
Joyner v. Moore-Wiggins Co. Ltd., 152 App. Div. 266,

136 N. Y. S. 578 (1912).................................................  9
Ivumezo Kawato, Ex Parte, 317 IT. S. 69 (1942).......33,34
Louisville & N. R. Co. v. Ritehel, 148 Ky. 701,147 S. W.

411 (1912)...................................... .................................  21
Missouri K. & T. Ry. Co. of Texas v. Ball, 25 Tex. Civ.

App. 500, 61 S. W. 327 (1901)........................................ 21
Morgan v. Virginia, ... 

cided June 3, 1946..
IT. S. S. Ct. 1050, de-

..........................  32

Myers v. Anderson, 238 IT. S. 368 (1915)..........................  7
Neal v. Delaware, 103 IT. S. 370 (1881)..........................  7
Nielson v. Johnson, 279 U. S. 47 (1929)...........................  24
Penn Coal Co. v. Mahon, 260 U. S. 393 (1922)......  8
Plessy v. Ferguson, 163 U. S. 537 (1896)....... 5,18, 21, 22, 29
Poindexter v. Greenhow, 114 LT. S. 270 (1884)..........7,8
Randall v. Cowlitz Amusements, 194 Wash. 92, 76 P.

(2d) 1017 (1938)........ ....................................-...............  9
Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849)... 30
Santovineenzo v. Egan, 284 IT. S. 30 (1931)....................  25

,___ ..32,35
........  32

Sehneiderman v. U. S., 320 IT. S. 118 (1943).........
Scott v. Sandford, 19 How. (IT. S.) 393 (1857).......
Standard Computing Scale Co. v. Farrel, 249 IT. S. 571 

(1919) ................ ................................................ ............  7
Stultz v. Cousins, 242 F. 794 (C. C. A. 6th, 1917)...-........ 19



IV

U. S. v. Belmont, 301 U. S. 324 (1937)............................. 24
U. S. v. Carotene Products, 304 U. S. 144 (1938). 12
U. S. v. Pink, 315 U. S. 203 (1942).................................  24
U. S. v. Rauscher, 119 U. S. 407 (1886).........   24
Village of Euclid v. Ambler Realty Co., 272 U. S. 365 

(1926) .. ........................................................... ...........  8
Ware v. Hylton, 3 Dali. (U. S.) 199 (1797)......................  24
Wolfe v. Georgia Railway Electric Co., 2 Ga. App. 499,

58 S. E. 899 (1907).... ...................................................  20
Wysinger v. Crookshank, 82 Cal. 588, 23 P. 54 (1890)...  9
Yick Wo v. Hopkins, 118 U. S. 356 (1886)......................  7,8

STATUTES CITED

Constitution of the United States:
Article I, Section 8, Clause 4...................................  32
Article VI, Clause 2......   23,31
Fourteenth Amendment ...................... 2, 3,12, 21, 28, 31
Fifteenth Amendment ............................................... 28

United States Code Annotated:
Title 28, Section 41, Subdivision 14........................  2

TREATIES CITED

Charter of the United Nations.......................................  25
Article 55(c) ............... ........ ............. .............. _.....23,31
Article 56 ............................................... 23

Act of Chapultepec............................................................ 23

PAGE



V

OTHER AUTHORITIES

Blascoer, Colored School Children in New York (1915) 30
Corwin, The Treaty Making Power, 199 North Amer­

ican Rev. 898 (1914).......................................................  24
Davis and Dollard, Children of Bondage (1940)....... .... 15
Davis, Wvatt and Atwood, This Be Their Destiny 

(1941) ............................. -........ -................ ....................  15
DeA. Reid, In a Minor Key (1940).... ............ ....................................... 15
Department of Justice, Immigration and Naturaliza­

tion Service, Monthly Review,
Vol. I (1943) ........................... ......... ................ — ...  33
Vol. I l l  (1945).................. ......................................... 33,34

Dowling, The Methods of Mr. Justice Stone in Con­
stitutional Cases, 41 Colum. L. Rev. 1160 (1941).... . 12

Drake and Clayton, Black Metropolis (1945)................. 11
Frazier, Negro Youth at the Crossways (1940)... .........  15
Hearing No. 69.25, Americanization of Adult Aliens, 

House Subcommittee on Immigration and Naturali­
zation, 69th Congress (2d Sess.), 1927......................  33

Hyde, International Law, Vol. II.................................. 25
Johnson, Growing Up in the Black Belt (1941)............. 15
Johnson, Patterns of Negro Segregation (1943)

10,11,15,17
Lasker, Race Attitude in Children (1929)....................  14
Long, Psychogenic Hazards of Segregated Education 

of Negroes, Journal of Negro Education, Vol. IV,
No. 3 (1935)....................................................................  15

Mangum, The Legal Status of the Negro (1940).......10,11

PAGE



VI

McGovney, Racial Residential Segregation by State 
Court Enforcement of Restrictive Agreements, 
Covenants or Conditions in Deeds is Unconstitu­
tional, 33 Calif. Law Rev. 5 (1945)............................  18

McWilliams, Race Discrimination and the Law, Sci­
ence and Society, Vol. IX, No. 1 (1945)..................  17

Moton, What the Negro Thinks (1929)........................  15
Myrdal, An American Dilemma (1944).......10,11,17,18, 29
Sterner, The Negro’s Share (1943)................................ 11
Stone, 50 Harvard Law Review 4 (1936)......................  8
Sutherland, Color, Class and Personality (1942)_____ 15
The Supreme Court of the United States During the 

October Term 1942, 43 Colum. L. Rev. 837 (1943)...12,29
Tuck, Not With the Fist (1946).......................................  16
Ware, The Role of the Schools in Education for Racial 

Understanding, Journal of Negro Education, Vol. 
XIII, No. 3 (1944)...... ....................................................  14

Wechsler, Stone and the Constitution, 46 Colum. L.
Rev. 765 (1946)........................................

Warner, New Haven Negroes (1940).........

PAGE

12



No. 11,310

IN  T H E

H&nitzb States (Etrrmt GJmtrt of Appeals

a p p e a l  f r o m  t h e  d i s t r i c t  c o u r t  o f  t h e  u n i t e d  s t a t e s

FOR T H E  SO U TH ERN  DISTRICT OF CALIFORNIA

BRIEF FOR THE AMERICAN JEWISH CONGRESS AS 
AMICUS CURIAE

Pursuant to leave granted by this court, The American 
Jewish Congress is submitting a brief herein as amicus 
curiae.

In the three decades of its existence the American Jewish 
Congress, on frequent occasions, has represented the 
democratic interests of the Jewish people before the courts, 
legislatures and administrative tribunals of the State and 
Federal Government. Its work, however, has never been 
confined to the interests of the Jewish people alone. We 
believe, indeed, that the Jewish interests are inseparable 
from those of justice and that Jewish interests are 
threatened whenever persecution, discrimination or humilia­
tion is inflicted upon any human being because of his race, 
creed, color, language or ancestry.

FOR THE NINTH CIRCUIT

W estminster S chool D istrict of O range 
Cou nty , et ah,

Appellants,
vs.

Gonzalo M endez, et al.,
Appellees.



2

Nor do we struggle for minorities alone. We are con­
vinced that the treatment of minorities in a community 
is indicative of its political and moral standards and ulti­
mately determinative of the happiness of all its members. 
In arguing here in favor of the rights of one ethnic group 
we are certain to serve the interests of all Americans.

Statement of the Case

Gonzalo Mendez, et al., the appellees, as citizens of the 
United States and on behalf of their minor children and 
some 5,000 persons similarly affected, all of Mexican or 
Latin descent, filed a class suit pursuant to Rule 23 of 
Federal Rules of Civil Procedure in the District Court of 
the United States for the Southern District of California 
against the appellants, the Westminster Garden Grove and 
El Modeno School Districts and the Santa Ana Schools, all 
of Orange County, California, and the respective trustees 
and superintendents of these Districts. The appellees’ pe­
tition, based upon the Fourteenth Amendment to the Con­
stitution of the United States and Subdivision Fourteen, 
Section 24 of the Judicial Code (Title 28, Section 41, sub­
division 14, U. S. 0. A.), alleged (1) that the appellants 
bad adopted and enforced certain regulations which pro­
hibited children of Mexican or Latin descent or extraction 
from attending certain schools in the respective districts, 
(2) segregated and required them to attend schools re­
served exclusively for children or persons of Mexican and
l.atin descent, and (3) that such regulations and usages 
resulted in a denial of the equal protection of the laws in 
violation of the Fourteenth Amendment. The petition de­
manded that the regulations and usages be declared uncon­
stitutional and that the appellants be enjoined from fur­
ther application thereof.

I pen trial of the issues before the United States District 
C ourt. Judge Paul J. McCormick rendered judgment 
agamst the appellants on the ground that the "pattern of 

education promulgated in the Constitution of Cal-



3

ifornia and effectuated by provisions of the Education Code 
of the State, prohibits segregation of the pupils of Mex­
ican ancestry in the elementary schools.” The Court also 
held that the segregation practices of the appellants’ school 
districts show “ a clear purpose to arbitrarily discriminate 
against the pupils of Mexican ancestry and to deny them 
the equal protection of the laws” , and were therefore a 
violation of the Fourteenth Amendment to the Constitution 
of the United States.

Scope of the Brief

The present brief is being filed after the presentation of 
the briefs of the appellants, of the appellees, and of the 
National Association for the Advancement of Colored Peo­
ple as friend of the Court. To avoid duplication, we shall 
confine ourselves to the discussion of three additional points 
listed below.

We should like, however, to emphasize that we fully agree 
with the main point made and documented by the National 
Association for the Advancement of Colored People to the 
effect that, as long as racial segregation prevails, no equal­
ity o-f even physical facilities is in fact possible: If the
facilities were really duplicated, financial ruin of the local 
bodies or the states would ensue. If financial disaster is 
to be avoided, the facilities granted to minorities are bound 
to be physically inferior.

For the purposes of this brief, however, we shall proceed 
on the assumption that the physical facilities furnished to 
the appellees are identical to those furnished to the English- 
speaking group. Our argument based on this assumption 
divides itself into three main points:

POINT ONE

Whenever a group, considered as “ inferior”  by the prevail­
ing standards of a community, is segregated by official action 
from the socially dominant group, the very fact of official 
segregation, whether or not “ equal”  physical facilities are



4

being furnished to both groups, is a humiliating and discrimi­
natory denial of equality to the group considered “ inferior” 
and a violation of the Constitution of the United States and of 
treaties duly entered into under its authority.

POINT TW O

Whenever inhabitants of the United States are classified, 
for purposes of official action, according to their race, color, 
creed, national origin or ancestry, whether or not such classi­
fication is based on discriminatory social or legal notions of 
“ inferiority”  or “ superiority”  of the various groups, the very 
fact of official differentiation according to racial, religious or 
national criteria is an unreasonable and inadmissible classifi­
cation and a violation of the Constitution of the United States 
and of treaties entered into under its authority.

POINT THREE

Segregation by official action of a state or its subdivisions 
of children of a more recent-immigrant foreign language group 
from children of less recent-immigrant English-speaking 
groups of Americans is inconsistent with the basic purposes, 
policies and provisions of the immigration and naturalization 
laws of the United States and therefore an unconstitutional 
interference with a valid Federal regulation.

ARGUMENT 

POINT ONE

Whenever a group, considered as “ inferior”  by the 
prevailing standards of a community, is segregated by 
official action from the socially dominant group, the 
very fact of official segregation, whether or not “ equal” 
physical facilities are being furnished to both groups, 
is a humiliating and discriminatory denial of equality 
to the group considered “ inferior”  and a violation of 
the Constitution of the United States and of treaties 
duly entered into under its authority.

f- ft is not disputed that the furnishing by an official 
body of inferior physical facilities to any given ethnic



5

group would represent an unlawful and discriminatory de­
nial of equality to such group. Plessy v. Ferguson, 168 
U. S. 537 (1896).

2. Mere identity of physical facilities, however, does not 
necessarily amount to equality either in the economic, po­
litical or legal sense. (The law would not recognize, for ex­
ample, that an estate has been divided equally between two 
children each receiving one of the two identical houses com­
prising the estate, if one of the houses were located in a 
busy banking district and the other fifty miles from the 
nearest railroad station. Nor would a probate court ac­
cept the division as equal even if the two identical houses 
were located on the same street, opposite each other, but 
if, for some known or unknown, valid or invalid reason, one 
side of that street were fashionable and sought-after, the 
other neglected and rejected.) Equality is indeed deter­
mined, in fact and in law, not by the physical identity of 
things assigned, in ownership use or enjoyment, but by iden­
tity or substantial similarity of their values.

In their turn, values do not depend solely or even pri­
marily on the physical properties of things or facilities to 
be valued but also on the “ social location” of these things or 
facilities, on their social significance and psychological con­
text or in short, on the community judgment attached to 
them.

The recognition of these legal principles of evaluation is 
not confined to the field of property. Lav? is no more blind 
to realities when political or civil rights are involved than 
when it deals with real estate or chattel. American law 
demands, in the enjoyment by persons of government- 
furnished facilities, an equality not less real and substantial 
than the one it exacts for the protection of heirs, partners 
or stockholders. In calling for “ equal protection” , or for 
“ equal facilities” , or for the “ outlawing of discrimination” , 
the Constitution and the laŵ s of the United States call for 
genuine equality of protection and not for a merely formal 
or physical identity of treatment.



6

3. It is a well known fact that the value and desirability 
of many objects, facilities, traits or characteristics may 
depend not so much upon their intrinsic qualities or defects, 
advantages or shortcomings as upon their association with, 
or use by persons enjoying a certain reputation. The value 
of a mediocre type of fabric may be enhanced by an arbiter 
elegantiarum wearing it, the desirability of a beautiful re­
sort may be lessened by its being visited by people deemed 
of “ low” social standing. If a group considered “ inferior” 
by the prevailing community sentiment adopts any given 
color of garment, accent of speech, or place of amusement, 
that color, accent or place will automatically be shunned by 
the majority and become less desirable or valuable.

These are, however, phenomena of social stratification 
productive of social inequality against which the law offers 
no direct remedy.

4. The same depreciation may take place, however, not 
because of spontaneous adoption of certain places, styles 
or objects by a group deemed “ inferior” but because of their 
imposition by the community, organized or otherwise.

If the Nazis while proclaiming the essential inferiority of 
the “Jewish race” , compelled Jews to wear clothes of one 
given color while reserving another to the master race, it 
could not be said that Jews have received equal clothing 
facilities even if the physical qualities of the clothing were 
identical to those given to the members of the Aryan race. 
Nor would the discriminatory and humiliating character of 
the measure depend on whether the colors were brown for 
the Jews and black for the others, or vice-versa. It is the 
exclusive allocation of a given color, of any color, to a race 
declared “ inferior” that makes the color less desirable. The 
inferiority thus transmitted from the wearer to the garment 
destroys the genuine “ equality” of the furnished facilities.

Similarly, it could hardly be disputed that an act of a 
legislature or of a school board expressly declaring that a 
given group is “ inferior” and therefore to be confined to



separate parks, schools or halls is discriminatory and there­
fore unconstitutional.

This result would be reached not because such act ex­
presses an opinion of inferiority or superiority (the mere 
expression of an opinion may very well not be within the 
concept of state action, see Brandeis J. in Standard Com­
puting Scale Co. v. Parrel, 249 U. S. 571,1919), but because 
discriminatory action has followed discriminatory opinion. 
The official assignment to a group of separate parks, schools 
or halls based on an officially stated conviction of the 
group’s inferiority would he an assignment of facilities 
inferior per se, regardless of their physical identity with 
the facilities assigned to the “ better” group.

The situation as here described could not be characterized 
as merely social inequality. We may assume that social 
inequality has antedated the enactment of the assumed stat­
ute or regulation. But a legislative or administrative dec­
laration of that pre-existing social inferiority and the en­
suing action of assignment of facilities, inferior because 
segregated, amounts to the creation of a legally sanctioned 
political inequality.

5. This result does not vary when, in the now described 
chain of (1) pre-existing social inequality; (2) legislative 
declaration thereof and (3) assignment of separate, and 
hence inferior, facilities, the intermediate link, i.e., the 
overt finding of inferiority, is omitted. Official action will 
not be allowed to accomplish by indirection what it may 
not achieve openly. Poindexter v. Greenliow, 114 U. S. 
270, 295 (1884); Yick Wo v. Hopkins, 118 IT. S. 356, 373 
(1886); Gwinn v. United States, 238 U. S. 347, 364 (1915); 
Myers v. Anderson, 238 IT. S. 368 (1915); Neal v. Delaware, 
103 U. S. 370 (1881).

The failure of a statute or regulation expressly to de­
clare a legal inferiority does not protect it from the scrutiny 
of the courts. When the reasonableness of a legislative 
classification is in question the courts will look behind the 
apparent classification to determine the real intent of the



8

law and whether or not, in fact, an illegal classification has 
been made. Henderson v. Mayor, 92 U. S. 259, 268 (1875); 
Bailey v. Alabama, 219 U. S. 219, 244 (1911); Penn Coal Co. 
v. Mahon, 260 IT. S. 393, 413 (1922). Thus, in Tick Wo v. 
Hopkins, supra, the Court declared (p. 373) : “ Though the 
law be fair on its face and impartial in appearance, yet, if it 
is applied and administered by public authority with an evil 
eye and unequal hand, so as practically to make unjust 
and illegal discriminations between persons in similar cir­
cumstances, material to their rights, the denial of equal jus­
tice is still within the prohibition of the Constitution.”

Any classification adopted by a governmental body as the 
basis of official action must be viewed not in the abstract 
but realistically in the social setting in which it operates. 

> The judge “must open his eyes to all those conditions and 
i circumstances * * * in the light of which reasonableness 
I is to be measured * * *. In ascertaining whether challenged 

action is reasonable, the traditional common-law technique 
does not rule out but requires some inquiry into the social 
and economic data to which it is to be applied. Whether 
action is reasonable or not must always depend upon the 
particular facts and circumstances in which it is taken,” 
Harlan F. Stone in 50 Harvard Law Review, pp. 4, 24 
(1936). See also Poindexter v. Greenhow, supra; Village 
of Euclid v. Ambler Realty Co., 272 U. S. 365, 387-388 
(1926); Connor v. Board, of Commissioners of Logan 
County, Ohio, 12 F. (2d) 789, 795 (1926). Furthermore, 
the Supreme Court has declared that while generally it will 
not inquire into the motives which led to the enactment of 
State regulation, yet “where the facts as to the situation and 
the conditions are such as to oppress or discriminate against 
a class or an individual the courts may consider and give 
weight to such purpose in considering the validity of the 
ordinance.” Dobbins v. Los Angeles, 195 IT. S 223 240 
(1904).

u should be pointed out here that in those States which 
have enacted Civil Rights statutes entitling all citizens and 
lesidents to full and equal public accommodations, the sep­
al at ion ot persons in a public place, is generally deemed



9

to be a discrimination. It has been held in such States that 
separation founded on race or color alone can be justified 
only on the ground that the Negro is inferior to the white 
and that such separation would do violence to equality 
before the law. In these cases segregation is synonymous 
with discrimination. Ferguson v. Gies, 83 Mich. 358, 46 
N. W. 718, 720 (1890) ; Bolden v. Grand Rapids Operating 
Co., 239 Mich. 318, 214 N. W. 241, 243 (1927); Jones v. 
Kehrlein, 49 Cal. App. 646, 194 P. 55 (1920); Donnell 
v. State, 48 Miss. 661 (1873); Joyner v. Moore-Wiggins Co., 
Ltd., 152 App. Div. 266,136 N. Y. S. 578 (1912); Crosswaith 
v. Bergin, 95 Colo. 241, 35 P. (2d) 848 (1934); Randall 
v. Cowlitz Amusements, 194 Wash. 92, 76 P. (2d) 1017 
(1938); Anderson v. Pantages Theatre Co., 114 Wash. 24, 
194 P. 813 (1921); Wysinger v. Crookshank, 82 Cal. 588, 23 
P. 54 (1890).

Segregation of school facilities according to national 
ancestry has no independent rational justification and no 
other relation to the purpose of the law than that to be 
found in a community feeling of the respective superiority 
and inferiority of the two ethnic groups. Official adoption 
of social classifications based on such feelings of necessity 
implies the adoption of the meaning inherent in, and insep­
arable from the classifications themselves, that of the re­
spective inferiority and superiority of the groups. It may 
lie doubted whether or not law should take affirmative steps 
to eliminate social inequality. But it seems certain that 
law may not adopt, sanction and enforce it. Whenever law 
adopts a social classification based on a notion of inferiority 
it transforms the, pre-existing social inequality into legal 
inequality. What ensues is official discrimination, a denial 
of equality before the law, vffiether or not the statement 
of inferiority is made openly by the government or inheres 
in the classification upon which official action is based.

6. Once a social classification based on group inferiority 
is “ adopted” by the law, the ensuing legal inferiority will 
in its turn intensify and deepen the social inequality from



10

which it stems. Law is, indeed, at the same time the con­
sequence and the cause of social phenomena. In ho other 
field is this truth more apparent than in that of ethnic rela­
tions. The undeniable effect of classification by race, color 
or ethnic origin has been to enforce an inferior economic 
and social status upon the non-white minority. The actual 
operation of segregation statutes illustrates this oppres­
sive function of the law. It is well known, for instance, 
that the doctrine of “ separate but equal” facilities has 
proved to be a mere legal fiction in most cases, that invari­
ably segregation has been accompanied by gross discrimina­
tion, and that absolute equality seldom, if ever, exists.1

1 Gunnar Myrdal, An American Dilemma (New York, 1944), pp. 580-581; 
“ When the federal Civil Rights Bill o f 1875 was declared unconstitutional, 
the Reconstruction Amendments to the Constitution—which provided that 
Negroes are * * * entitled to ‘equal benefit o f all laws’ * * * could not be 
so easily disposed of. The Southern whites, therefore, in passing their various 
segregation laws to legalize social discrimination, had to manufacture a legal 
fiction of the same type as we have already met in the preceding discussion 
on politics and justice. The legal term for this trick in the social field, 
expressed or implied in most of the Jim Crow statutes is ‘separate but equal’. 
That is, Negroes were to get equal accommodations, but separate from the 
whites. It is evident, however, and rarely denied, that there is practically 
no single instance of segregation in the South which has not been utilized 
for a significant discrimination. The great difference in quality o f service 
for the two groups in the segregated set-ups for transportation and education 
is merely the obvious example of how segregation is an excuse for discrimi­
nation.”

Charles S. Johnson, Patterns of Segregation (New York, 1943), p. 4: 
It is obvious that the policy o f segregation which the American system of 

values proposes, merely to separate and to maintain two distinct but sub­
stantially equal worlds, is a difficult ideal to achieve. Any limitation o f  free 
competition inevitably^ imposes unequal burdens and confers unequal advan­
tages. Thus, segregation or any other distinction that is imposed from  with­
out almost invariably involves some element o f social discrimination as we 
have defined it.

p. 318: T h e  la w s  p r e s c r ib in g  ra cia l s e g r e g a t io n  a re  b a s e d  u p o n  the
a ssu m p tion  that ra cia l m in o r it ie s  ca n  b e  s e g re g a te d  u n d e r  c o n d it io n s  th a t  are 
eg a lly  v a lid  i f  n o t  d isc r im in a t in g . T h e o r e t ic a l ly , s e g r e g a t io n  is  m e r e ly  the 

separa  e but equ a l trea tm en t o f  eq u a ls . In  su ch  a  c o m p le x  a n d  o p e n  society  
as o u r  ow n , th is  is o f  co u rse , n e ith e r  p o ss ib le  n o r  in t e n d e d ;  f o r  w h e r e a s  the 
^ l , - . P rm Clp e -°,f  S0Clal re g u la t>on a n d  s e le c t io n  is  b a s e d  u p o n  in d iv id u a l 

p e , '  loni  sPe ^ial g r o u p  s e g re g a t io n  w ith in  th e  b r o a d  s o c ia l  fra m e w o rk  
_ e ,5  ■ a [ t lf ic la ,ly  .arK* b y  tb e  im p o s it io n  o f  a r b i t r a r y  restra ints.
I f ™ ; J ; S *3at t.h e r e . can  110 g r o u p  s e g r e g a t io n  w ith o u t  d isc r im in a tio n , 

and d isc r im in a tio n  is n e ith e r  d e m o c r a t ic  n o r  C h r is t ia n .”

Tr Fr L a r S y o ° f,  se^ e f,a ti° n  a n d  d is c r im in a t io n  see C h a r le s  S . M angutn , 
PattlrnsLnf i f  o r  UY f  thefP e9r° (C h a p e l  H il l,  1940); C h a r le s  S . J oh n son , 
y i n  f  N 9 Segregation ( N e w  Y o r k ,  1943) ; M y r d a l,  op. cit.. Part



11

The great disparity in the funds expended upon white 
and colored schools respectively by those Southern states 
which enforce segregation,2 the one-sided enforcement of 
segregation laws and the inferiority of public accommo­
dations reserved for Negroes,3 the wage differentials and 
other economic inequalities between the races,4 the segre­
gated slum areas in which Negroes are forced to live,5 
the neglect of their social needs or complete denial of pub­
lic services, and the other innumerable burdens and de­
privations impressed upon the Negro minority by the 
oppressive mechanism of segregation,6 all furnish over­
whelming testimony that the system of legal separation 
based upon race was never intended to and can have no 
other result than one of increasing, through the sanction 
of the law, that social and economic inferiority in which 
the law itself originated.

2 F o r  d o c u m e n ta t io n  o f  e d u c a t io n a l  in e q u a lit ie s  g r o w i n g  o u t  o f  s e g re g a te d  
s ch oo ls , s ee  N A A C P  b r i e f  amicus curiae f i le d  in  th is  ca s e . S e e  a ls o  J o h n s o n , 
op. cit., p. 12ff; C h a r le s  S . M a n g u m , J r ., op. cit., p p . 129-137.

3 M y rd a l, op. cit., p p . 576-577: “ T h e  s a n ct io n s  w h ic h  e n f o r c e  th e  r u le s  o f  
s eg reg a tion  a n d  d is c r im in a t io n  a ls o  w i l l  b e  f o u n d  t o  b e  o n e -s id e d  in  th e ir  
a p p lica tion . T h e y  a re  a p p lie d  b y  th e  w h ite s  t o  th e  N e g r o e s ,  n e v e r  b y  th e  
N eg roes  t o  th e  w h ite s . T h e  la w s  a r e  w r it t e n  u p o n  th e  p r e t e x t  o f  e q u a lity  
but are  a p p lie d  o n ly  a g a in s t  th e  N e g r o e s .”

4 J oh n son , op. cit-., p . 90: “ A n  im p o r ta n t  d is t in c t io n  is  p r e s e r v e d , p a r t ic u ­
la rly  in  the S o u th , b e tw e e n  w a g e s  f o r  w h it e  a n d  N e g r o  w o r k e r s . T h is  w a g e  
d ifferen tia l is ta k e n  f o r  g r a n te d  b e c a u s e  o f  th e  d i f f e r e n c e  in  th e  ty p e s  o f  
w o rk  d o n e  in  th e  p a st . *  *  *  W a g e  d i f fe r e n c e s  a r e  n o w  s o  w e l l  e s ta b lis h e d  
in cu stom  th a t th e y  a re  f r e q u e n t ly  m a in ta in e d  w h e r e  w o r k  is  id e n t ic a l , w ith  
the c o n v ic t io n  th a t  th is  is  n e c e s s a r y  t o  p r e s e r v e  th e  s u p e r io r  s o c ia l  s ta tu s  o f  
the w h ite  w o r k e r .”

S ee  a ls o  M y r d a l, op. cit.. p . 391; R ic h a r d  S te r n e r , The Negro’s Share 
(N e w  Y o r k ,  1943).

“ M y rd a l, op. cit., p . 618ff; see a ls o  S t . C la r e  D r a k e  a n d  H o r a c e  R . 
C ayton , Black Metropolis ( N e w  Y o r k ,  1945).

3 M y rd a l, op. cit., p p . 642-643 : “ T h e  f a c t  th a t  s o c ia l  s e g r e g a t io n  in v o lv e s
a su bstan tia l e le m e n t  o f  d is c r im in a t io n  w i l l  a d d  its  in flu e n c e  t o  th is  v ic io u s  
cycle . N e g r o e s  a r e  g iv e n  a d e q u a te  e d u c a t io n , h e a lth , p r o t e c t io n , a n d  h o s p i ­
ta liza tion  ; th e y  a re  s e g r e g a t e d  in  d is t r ic ts  w h e r e  p u b l ic  s e r v ic e s  o f  w a te r  
p ro v is io n , se w a g e , a n d  g a r b a g e  r e m o v a l , s tree t  c le a n in g , s tr e e t  l ig h t in g , p a v -  
ing, p o lic e  p r o te c t io n  a n d  e v e r y t h in g  e ls e  is  n e g le c t e d  o r  w ith h e ld  w h ile  v ic e  
is o fte n  a l lo w e d . A l l  th is  m u st  k e e p  th e  N e g r o  m a s s e s  i n f e r i o r  a n d  p r o v id e
reasons f o r  fu r th e r  d is c r im in a t in g  in  p o l it ic s ,  ju s t ic e  a n d  b r e a d w in n in g . *  *  *
t h e  v e ry  e x is te n c e  o f  th e  h e a v y  m e ch a n is m  o f  s o c ia l  s e g r e g a t io n  a n d  d is ­

c r im in a tion  m ak es  in e q u a lit ie s  in  p o l it i c s  a n d  ju s t ic e  m o r e  p o s s ib le  a n d  se e m - 
m gly  u n ju s t if ia b le  o n  g r o u n d s  o f  in f e r io r i t y .”



12

This situation involves at the same time another kind 
of vicious circularity. The now described effect of segre­
gation laws makes their spontaneous repeal or amendment 
a practical impossibility. When a more or less inarticulate 
social feeling of racial superiority is clothed with the 
dignity of an official law, that feeling acquires a concrete­
ness and assertiveness which it did not possess before. 
The stricter the law or discriminatory segregation the 
stronger and the more articulate the feeling of social dis­
tance. And the stronger that feeling, the stricter the law 
and the more difficult its amendment or repeal. In such 
setting the very roots of democratic processes are threat­
ened and no reliance can be placed on their correcting 
effect. It is this type of situation which Chief Justice 
Stone had in mind when, in sustaining the constitutionality 
of an economic measure, he warned that the decision did 
not foreclose the question whether “ legislation which re­
stricts those political processes which can ordinarily be 
expected to bring about repeal of undesirable legislation, 
is to be subjected to more exacting judicial scrutiny under 
the general prohibitions of the Fourteenth Amendment 
than are most other types of legislation” and whether 
“ similar considerations enter into review of statutes di­
rected at particular religious, * * * or national * * * or 
racial minorities, * * * whether prejudice against discrete 
and insular minorities may be a special condition, which 
lends seriously to curtail the operation of those political 
processes ordinarily to be relied on to protect minorities and 
which may call for a correspondingly more searching judi­
cial inquiry.” United States v. Carotene Products, 304
T. S. 144, 153 (1938). The importance of Stone’s theory 
of political restraints has been stressed in Dowling, The 
Methods of Mr. Justice Stone in Constitutional Cases, 41 
Columbia L. Rev. 1160, 1176 (1941); See, The Supreme 
( ourt of the United States During the October Term 1 9 4 2 , 
43 ( olumbia L. Rev. 837, 938 (1943); Wechsler, Stone and 
the Constitution, 46 Columbia L. Rev. 765, 795 (1946).



13

The true function of law, in a constitutional form of 
government, is to guide society towards higher forms of 
co-existence rather than to follow the less worthy attitudes 
of a community. The people of the United States have 
established a constitution in order to ensure that all gov­
ernment officials will find in the permanent dictates of 
decency a defense against the transient whims or preju­
dices of a local or national majority. When, on the con­
trary, governmental officials follow the lowest level of 
community thinking, they betray their function of political 
leadership. Where prejudice is legalized, where bigotry 
is given official sanction, where prestige of law is lent to 
bias, there ignorance, narrow-mindness and hatred assert 
themselves openly, and operate as of right. An official 
action, born in and based on a discriminatory classification, 
breeds in turn more inequality and more prejudice. The 
vicious circle can be broken only if the courts exercise the 
power which the Constitution has vested in them for the 
protection of the basic values of our society. 7

7. Every one of the preceding remarks acquires particu­
lar significance and singular strength when applied to 
segregation of facilities available for the education of 
children. Indeed:

a. The value and the desirability of an educational insti­
tution is particularly dependent on intangible elements. 
The physical characteristics of the benches and desks of 
a school shrink into utter insignificance when compared 
with the social and psychological environment which the 
school offers to its children.

b. Children are more impressionable and are more im­
pressed than adults by the implied environmental judgments 
of superiority and inferiority. Those deemed superior 
are often, in manifesting their innocent pride, more cruel 
than normal adults usually are. On the other side, chil­
dren who feel that they are treated as inferior are more 
bitterly humiliated by the social stigma that strikes them 
than adults can be.



14

c. The children’s acceptance of the reasonableness of 
official action is often less critical than that of adults. On 
the other hand, once their respect for community judgments 
is shaken, their denial of community values is equally 
sweeping.

d. The official imposition of a segregated pattern based 
on notions of inferiority and superiority produces its 
deepest and most lasting social and psychological evil re­
sults when applied to children.

Authorities agree that feelings of racial superiority or 
inferiority are not innate in any child but are instilled in 
him by adults or by his observation of institutions about 
him.7 Since segregation reinforces group isolation and 
social distance it helps to create conditions in which un­
healthy racial attitudes may flourish. By giving official 
sanction to group separation based upon the assumption 
of inferiority it helps to perpetuate racial prejudice and 
contributes to the degradation and humiliation of the 
minority child.8 The crippling psychological effects of

7 See Bruno Lasker, Race Attitude in Children (New York, 1929), p. 48; 
“ In social settlements, race distinctinos are often made because they are taken 
for granted by the directors, not because they are especially desired by the 
children. There are many mentions o f both long-established and recent mixed 
clubs in the reports of settlements where these have been allowed to grow up.” 

P-, 197: “ * * * the playground may also * * * be the occasion o f  the 
child s first experience of race separation and the arena o f his first active 
part in racial conflict. Surveys made in a number o f  cities have shown that 
the public playground often introduced into the life o f  the child who has 
mixed with children of another race in school the first consciousness of a 
social distinction between the two groups. Just because its contacts are vol­
untary, adult opinion forces a recognition o f prevailing social discriminations.”

8 See statements by the following authorities as to the effects o f  segrega­
tion on Negro and Mexican children:

Caroline F. Ware, “The Role of the Schools in Education for Racial 
der,S,tf nd.! 1g ’ J°urnal of Negro Education, Vol. X III, No. 3, pp. 421-431, 

T„  ̂ seSregated school system presents almost insuperable obstacles.
a+ Sr.em> t^e raclaj situation may be made worse by vicious attitudes, 

as ^  sy,?P fthetlc ones. But the sheer fact o f  segregation stands
Mexican remmde,r .t0 e,vel'y white child, every day, that the Negro or
^  chjldren are being kept away from his school. And the children
bred the hJrT"' Sj a ê reminded, daily, that they are outcasts. In each is 
not t o ,  JT h e dlstaSce and of stereotype thinking. Each learns either 
from attention * * * ” they P3SS ° n the way to school> °r to see and dismiss



15

such segregation are in essence a denial of equality of 
treatment. In this sense segregation is burdensome and 
oppressive and comes within the constitutional prohibition.

In this connection great weight should be given to the 
finding of the court below in the instant case:

“ The evidence clearly shows that Spanish-speaking 
children are retarded in their learning English by lack 
of exposure to its use because of segregation, and that 
commingling of the entire student body instills and

s (Cont’d)
Robert R. Moton, What the Negro Thinks (Garden City, N. Y., 1929), 

p. 113: “Always the objectionable corollary o f inferiority accompanies the 
separate school. However attractive may be the provisions for colored chil­
dren, those in authority see to it that the provisions for white children are 
better, and such discriminations will obtain all through the system. And o f 
all thing's Negroes resent most are these persistent, insidious implications of 
inferiority.”

E. Franklin Frazier, Negro Youth A t the Crossways (1940), p. 290: 
“The * * * pathological feature o f  the Negro community is o f  a more gen­
eral character and grows out o f  the fact that the Negro is kept behind the 
walls o f segregation and is in an artificial situation in which inferior stand­
ards of excellence or efficiency are set up. Since the Negro is not required 
to compete in the larger world and to assume its responsibilities, he does not 
have an opportunity to mature.”

Howard Hale Long, “ Psychogenic Hazards o f Segregated Education of 
Negroes” , The Journal o f  Negro Education, Vol. IV, No. 3, July, 1935, p. 343: 
“The total setting o f the segregated school literally forces a sense o f  limita­
tion upon the child. He is reminded o f  it whether in home, school, theatre, 
or in the streets. I f  he wishes to earn some extra pennies after school, or 
if he becomes occupation-conscious, he meets the problem. For him the 
symptoms o f unavoidable limitation are as ubiquitous as the air he breathes. 
Our best guess is that the high rate o f delinquency among Negroes is directly 
related to this phenomenon o f isolation, or absence o f wholesome goals. 
How early and to what extent, the child senses the situation we do not 
know. W e do know that the Negro is in a competition with great odds 
against him. Competition is at its best when there is a reasonabe chance o f 
success. The colored citizen is surrounded by a highly organized social and 
economic structure in which he is not allowed to compete on equal terms 
with his fellows. Knowledge and experience o f the inner workings o f  the 
mechanisms are not shared with him; they are preempted by others. If 
he knocks at the door o f  opportunity, he is usually denied on grounds con­
trary to pronounced ethical and democratic ideals. Segregated education 
both foreshadows and insures coming events.”

For an intensive study o f the problems o f Negro youth because o f  segre­
gation and discrimination see series prepared for the American Youth Com­
mission: Ira DeA. Reid, In a Minor Key  (1940); Allison Davis and John 
Dollard, Children of Bondage (1940) ; E. Franklin Frazier, Negro Youth at 
the Crossways (1940) ; Charles S. Johnson, Growing Up in the Black Belt 
JD®4J) > Vincent J. Davis, Donald W . Wyatt and J. Howell Atwood, This Be 
/heir Destiny (1941); Robert L. Sutherland, Color, Class and Personality 
(1942).
„ p ^ ee. aisoi Charles S. Johnson, Patterns of Segregation (1943), Pt. II, 

Behavioral Response o f Negroes to Segregation and Discrimination” .



16

develops a common cultural attitude among the school 
children which is imperative for the perpetuation of 
American institutions and ideals. It is also estab­
lished by the record that the methods of segregation 
prevalent in the defendant schools foster antagonisms 
in the children and suggest inferiority among them 
where none exists.” 9

8. The record of the instant ease clearly shows that 
the segregation of children of Mexican or Latin descent in 
the Westminster School District of Orange County was 
based on the prejudiced feeling that these children were 
inferior to those of the Anglo-Saxon group. The clear 
significance of the assignment of separate facilities to them 
was therefore in the social context in which official actions 
must be judged, a discriminatory and humiliating assign­
ment of facilities which were “ equal” , if at all, only in 
their physical aspects.

0 See also, Ruth D. Tuck, N o t W i th  the F ist. A  Study o f Mexican- 
Americans in a Southwest City (New York, 1946). Miss Tuck observes: 

"Descano [the Southwestern City] for many years has proceeded to 
‘untiain’ large numbers of its little citizens for democratic living. By setting 
up a segregated school system, it not only untrained Juan Perez’s children 
but it untrained the small descendants of pioneers. The lessons each group, 
sequestered from the other, learned were those nicely calculated to nurture 
stereotyped thinking, prejudice, fear and friction” (p. 184).

"The child (o f  Mexican descent) who spends ten years o f his school life 
in a segregated system emerges speaking accented English for the rest of his 
life. Learning a language is essentially a social process. I f  a language is 
spoken only in the classroom, it will not be well learned; and no amount of 
authoritarian pressure can keep a child from speaking the language of his 
home on the playground, if he is among others o f his own group only. Actu­
ally, children with a fair command of English have lost it, after transfer into 
a segregated school. More Serious, however i<5 the nrie-cirlerl rlewelnon-rent.

The reason usually advanced for segregation is that o f  linguistic diffi­
culty. It seems a queer one to advance in a rnnntrv •txrViieL boe erliir*cite(l

. ,  r  ----- -- -*■“ **•> 111 i n ' -  o t g i c g d l i u i
techniques adapted to bilingual children, 
stituted the only justification” (p. 187).’



17

Superintendent Kent asserted that the Mexican children 
are “dirty” , have lice; impetigo; generally dirty hands, 
face, neck, ears, and are inferior to the white races in 
the matter of personal hygiene (E. Tr. pp. 116, 121). He 
admitted that “ on account of cleanliness” the children of 
Mexican descent have been segregated (E. 'Tr. p. 88).

9. It is a matter of common knowledge, of which many 
courts have already taken judicial notice, that measures of 
segregation against Negroes, Mexicans, Chinese and other 
minority groups or colored races are due to and predi­
cated solely upon the social notions of national, racial or 
religious inferiority and superiority.10

Mr. Gfunnar Myrdal, social scientist, in his exhaustive 
two-volume study of Negro-white relationships in the 
United States, An American Dilemma, has described these 
mores (p. 100) :

“In the magical sphere of the white man’s mind, the 
Negro is inferior, totally independent of rational proofs 
or disproofs. And he is inferior in a deep and mys­
tical sense. The ‘reality’ of his inferiority is the white 
man’s own indubitable sensing of it, and that feeling 
applies to every single Negro * * # the Negro is be­
lieved to be stupid, immoral, diseased, lazy, incompe­
tent, and dangerous—dangerous to the white man’s 
virtue and social order.”

Segregation of this type may be described as a form of 
partial ostracism11 and its motivation has become the pro-

10 Carey McWilliams, “ Race Discrimination and the Law” , Science and 
Society, Volume IX , Number 1, Winter 1945: “ Systematic discrimination 
against a racial minority usually assumes the form o f  segregation. The 
subordinate status o f the group may, in fact, be inferred from the modes of 
segregation to which it is subjected. Segregation is o f two general types: 
passive segregation based on custom and tradition; and active segregation, 
that is, legally sanctioned segregation. The latter type presents the problem 
of racial discrimination with entire clarity from the standpoint o f  the minority 
group, since it officially imputes an essential inferiority to those segregated.”

11 Charles S. Johnson, Patterns o f Negro Segregation (New York, 1943),



1 8

tection of a dominant culture from the threat of an “in­
ferior” culture.12 Through a variety of complex patterns 
and social controls it reinforces and guarantees the inferior 
status of the minority group isolated, and in turn the 
inferior status becomes a justification for a belief in the 
inherent inferiority of this group and the wisdom of enforc­
ing segregation.18

Professor D. 0. McGovney has said in a recent article 
appearing in California Law Eeview: 14

“ When a dominant race, whether white or Negro, de­
mands separation, it is fallacious to say * * * that the 
intention and effect is not to impose a ‘badge of in­
feriority’ on the other. When a Negro workingman 
or woman is seated in the third seat of a street car on 
St. Charles Avenue in New Orleans and a white man 
or woman is seated in the fourth seat, separated only 
by a bit of wire mesh ten inches high, set on the back

12 Gunnar Myrdal, A n  A m erica n  D ilem m a, 2 vols. (N ew York, 1944), p. 
lOOff. See also Part VIII, “ Social Inequality” .

13 Myrdal, supra, footnote G.
14 “ Racial Residential S egrega tion  by S tate C ou rt E n fo r c e m e n t  o f  Restric­

tive A greem en ts , C ovenants or C ond itions in D eed s  I s  Unconstitutional' 
(1945), 33 Calif. Law Review 5, p. 27, n. 94.

See also Justice Harlan’s dissent in P le ssy  v. F erg u so n , 163 U. S. 537, in 
which he argued that the purpose o f the Louisiana segregation statute then 
before the Court was to impress legal inferiority upon Negroes against whom 
the statute was directed. He said :

It was said in argument that the Statute o f  Louisiana does not discriminate 
against either race, but prescribes a rule applicable alike to white and col­
ored citizens. But this argument does not meet the difficulty. Everyone 
knows that the statute in question had its origin in the purpose, not so rriuci 
to exclude white persons from railroad cars occupied by blacks, as to exclude 
colored people  ̂ from coaches occupied by or assigned to whites. Railroad 
corporations of Louisiana did not make discrimination among whites in the 
matter of accommodation for travellers. The thing to accomplish was, under 
the guise of giving equal accommodation for white and blacks, to compel the 
latter to keep to themselves while travelling in railroad passenger coaches.

one would be so wanting in candor as to assert the contrary * * * ” (p 
od7).

The destinies o f the two races in this country are indissolubly linked 
 ̂ and the interests o f both require that the common government of
an snail not permit the seeds of race hate to be planted under the sanction 
° :  7 W- ”  hat can more certainly arouse race hate, what can more certainly 

and perpetuate a feeling o f distrust between these races, than State 
. cments, which, m fact, proceed on the ground that colored citizens ate 

, ° egr?ded that they cannot be allowed to sit in public coaches 
snrbPl ^ ' t|yt'Wllte cltlzensl That, as all will admit, is the real meaning of 
such legislation as was enacted in Louisiana” (p. 360).



19

of the third seat, there is a ‘separation’ that is merely 
a symbolic assertion of social superiority, a ‘cere­
monial’ separation.”

So completely is the inferior position of the Negro 
minority guaranteed by legal segregation that numerous 
Southern state courts have held that the word “ Negro” 
or “ colored person” when applied to a white person gives 
rise to a cause of action for defamation, a doctrine which 
has also been upheld by a federal court.

In Stultz v. Cousins, 242 F. 794 (C. C. A. 6th, 1917), 
it was held that a right of action for libel per se existed 
where a defendant published a false statement that the 
plaintiff was a man of “ one-fourth” Negro blood. The 
court declared (p. 797) :

“Whatever be the rule as to spoken words, the authori­
ties establish that the publication of a writing contain­
ing such a statement in respect to a white man is libel­
ous per se, at least in a community in which marked 
social differences between the races are established 
by law and custom.”

In Flood v. News and Courier Co., 71 S. C. 112, 50 S. E. 
637 (1905), a South Carolina court ruled that right to 
recovery resulting from a publication in a newspaper of 
a white man that he is a Negro was in no way affected 
by the adoption of the Thirteenth and Fourteenth Amend­
ments. In sustaining its position the court argued at page 
639:

“When wrn think of the radical distinction subsisting 
between the white man and the black man, it must be 
apparent that to impute the condition of the Negro 
to a white man would affect his (the white man’s) 
social status, and in case any one publish a white man 
to be a Negro, it would not only be galling to his pride, 
but would tend to interfere seriously with the social 
relation of the white man with his fellow white men.”



2 0

And the Georgia court, in 1907, deciding the case of 
Wolfe v. Georgia Railway Electric Co., 2 Ga. App. 499, 
58 S. E. 899, took judicial notice of the fact that to call a 
white man a Negro, even in good faith or through an inno­
cent mistake, constituted an actionable wrong. The court 
asserted at page 902:

“ It is a matter of common knowledge that, viewed 
from a social standpoint, the Negro race is in mind 
and morals inferior to the Caucasian. The record of 
each from the dawn of historic times denies equality.”

Keferring to the “ intrinsic differences” between the races 
the court observed that these differences “ are recognized 
in this state by the laws against intermarriage, by the laws 
for the separation of passengers by common carriers, sep­
arate schools, etc.”

In a similar holding the highest court of Oklahoma de­
clared in Collins v. Oklahoma State Hospital, 76 Okla. 229, 
184, P. 946, 947 (1919): *

“ In this state, where a reasonable regulation of the 
conduct of the races has led to the establishment of 
separate schools and separate coaches, and where con­
ditions properly have erected insurmountable barriers 
between the races when viewed from a personal and 
social standpoint, and where the habits, the disposi­
tion, and characteristics of the race denominate the 
colored race as inferior to the Caucasian, it is libelous 
per se to write of or concerning a white person that 
he is colored. Nothing could expose him to more 
obloquy, or contempt, or bring him into more disrepute, 
than a charge of this character.”

in Anderson v. Poutages Theatre Co., 114 Wash. 24, 191 
I*. 813 (1921), where a Negro was ejected from a theatre 
upon refusal to sit in the balcony where he was assigned 
solely because of race, the Washington court in upholding 
recovery described the injury resulting from such dis­
crimination as an “assault upon the person, and in such 
c.c.'C, the personal indignity inflicted, the feeling of humilia-



21

tion and disgrace engendered, and the consequent mental 
suffering are elements of actual damages for which an 
award is given” (p. 816).

Where white persons have been compelled to ride in 
Negro coaches the courts have deemed the humiliation and 
mortification so great as to warrant the award of damages. 
Louisville and N. K. Co. v. Ritchel, 148 Ky. 701, 147 S. W. 
411 (1912); Missouri K. & T. Ry. Co. of Texas v. Ball, 25 
Tex. Civ. App. 500, 61 S. W. 327 (1901); Chicago, R. I. 
£ P. Ry. Co. v. Allison, 120 Ark. 54, 178 S. W. 401 (1915).

10. Discriminatory denial of equal governmental facili­
ties is concededly a violation of the equal protection clause 
of the Fourteenth Amendment to the United States Con­
stitution. The assignment of segregated facilities to a 
group because of its alleged or real social inferiority is 
similarly a denial of equal facilities and of the equal pro­
tection of the laws.

The leading case in the field, Plessy v. Ferguson, supra, 
decided in 1896, exactly a half century ago, accepts in sub­
stance the constitutional theory that segregation based on 
notions of inferiority is invalid. The court declared that 
"every exercise of the police power must be reasonable 
and extend only to such laws as are enacted in good faith 
for the promotion of the public good and not for the annoy­
ance or oppression of a particular class”  (p. 550, italics 
added) and that, for instance, laws “ requiring colored 
people to walk upon one side of the street, and white people 
upon the other, or requiring white men’s houses to be 
painted white, and colored men’s black, or their vehicles or 
business signs to be of different colors, upon the theory 
that one side of the street is as good as the other, or that 
a house or vehicle of one color is as good as one of another 
color”, would be clearly unconstitutional.

The court found, however, that the law requiring segre­
gation on railroads was constitutional because it proceeded 
on the factual and sociological assumption that such segre­
gation did “ not necessarily imply the inferiority of either 
race to the other” (p. 544, italics added).



22

The court’s basic finding reads as follows:
“We consider the underlying fallacy of the plaintiff’s 
argument to consist in the assumption that the enforced 
separation of the taco races stamps the colored race 
with a badge of inferiority. If this be so, it is not 
by reason of anything found in the act, but solely be­
cause the colored race chooses to put that construction 
upon it. The argument necessarily assumes that if, 
as has been more than once the case, and is not unlikely 
to be so again, the colored race should become the 
dominant power in the state legislature, and should 
enact a law in precisely similar terms, it would thereby 
relegate the white race to an inferior position. We 
imagine that the white race, at least, would not ac­
quiesce in this assumption” (p. 551, italics added).

In short, the factual basis of Plessy v. Ferguson is: The 
“ colored race chooses to put” the construction of inferior­
ity upon the segregation statute. In that construction— 
the assumption that segregation is predicated on inferior­
ity—-“ the white race * * * would not acquiesce” . Will any 
court today, in the light of the sociological and psychological 
findings made in the last fifty years, prove so lacking in 
candor and so blind to realities as to subscribe to the fiction 
of benevolent segregation on which Plessy v. Ferguson 
relies! That is the issue. Not the legal doctrine of Plessy 
v. Ferguson is in question but the factual fallacy on which 
it rests. Once ascertained that the only real meaning of 
the distinction between Negroes and wdiites, Mexicans and 
Anglo-Saxons, is that of inferiority of one group to an­
other—the legal consequences are not in question. The 
very doctrine of Plessy v. Ferguson calls for the outlawing 
of humiliating and discriminatory laws. 11

11. In addition to the foregoing considerations, the 
abolition of discrimination on account of race, creed, color 
has been now made a part of national policy by the rati­
fication of international treaties to which the United States 
of America is a party. This national policy must override 
any contrary State law and custom in accordance with



23

Article VI, Clause 2 of the Constitution, which provides 
that “All Treaties made, or which shall be made, under 
the Authority of the United States, shall be the supreme 
Law of the Land; and the Judges in every State shall be 
bound thereby, any thing in the Constitution or Laws of 
any State to the contrary notwithstanding.”

The Charter of the United Nations has been duly signed 
by the President and ratified by the Senate of the United 
States. Under the provisions of this Charter the United 
States solemnly undertook* together with the other signa­
tories to promote freedom for all without distinction as to 
race, language or religion.

Thus, Article 55e of the Charter provides:
“The United Nations shall promote * * * uniform 
respect for, and observance of, human rights and fun­
damental freedoms for all without distinction as to 
race, sex, language, and religion.”

And in conjunction therewith Article 56 states:
“All members pledge themselves to take joint and sep­
arate action in cooperation with the Organization for 
the achievement of the purposes set forth in Article 
55.”

Furthermore, the United States Government, as a par­
ticipant of the Inter-American Conference on Problems of 
War and Peace and in connection with the signing of the 
Act of Chapultepec in Mexico City on March 6, 1945, joined 
with other nations in a resolution to recommend that their 
governments

“make every effort to prevent in their respective coun­
tries all acts which may provoke discrimination among 
individuals because of race or religion” (italics added).

outlawing not only discrimination but also its potential 
causes. The formulation is certainly broad enough to 
cover segregation.

These declarations upon their execution bind the States 
as well as the federal government. Baldwin v. Franks,



24

120 IT. S. 678 (1887); Ware v. Hylton, 3 Dali. (U. S.) 199 
(1797); Foster v. Neilson, 2 Pet. (U. S.) 253 (1829).

Treaty provisions prevail over State enactments when 
the latter are inconsistent therewith. “ That the treaty 
power of the United States extends to all proper subjects 
of negotiation between our government and the govern­
ments of other nations is clear,” Field, J., in Geofroy v. 
Riggs, 133 U. S. 258, 266 (1890) (italics added). See also 
Hauenstein v. Lynham, 100 U. S. 483, 489 (1880); Nielson v. 
Johnson, 279 U. S. 47 (1929); U. 8. v. Pink, 315 U. S. 203 
(1942). The courts are bound to take judicial notice of 
treaty declarations and to enforce the rights of persons 
growing out of them. U. 8. v. Rauscher, 119 IT. S. 407, 419 
(1886); U. S. v. Belmont, 301 U. S. 324 (1937).

Persuasive precedent is provided by the decision 
Re Drummond Wren, O. R. 778 (1945), decided by the 
Supreme Court of Ontario, October 31, 1945. In that case 
a restrictive covenant in a deed declaring that the lands 
involved were not to be sold “ to Jews or persons of objec­
tionable nationality” was held invalid as contrary to public 
policy. In determining the national policy which should 
govern the case, Judge Mackav relied heavily upon Sec­
tions 55c and 56 of the United Nations Charter, of which 
Canada was a signatory, as well as upon other international 
compacts and provincial statutes.

12. The theory advocated here does not mean that the 
federal government can, through the use of its treaty- 
power, invade every field of State activity. We do not 
say that “ the Inited States has exactly' the same range 
of power in making treaties that it would have if the States 
did not exist” (Corwin, “ The Treaty Making Power,” 199 
North American Review (1914), 898). On the contrary 
we believe that, in order to fall within the supremacy 
clause provision a treatŷ  should deal with “ objects which 
in the intercourse of nations had usually been regarded 
as the proper subjects of negotiation and treaty” (Clifford, 
J., in Holden v. Joy, 17 Wall. 211, 242-243 (1872)), with



25

“proper subjects of [international] negotiation” (Field, J., 
in Geofroy v. Riggs, supra), with “ subjects which properly 
pertain to our foreign relations” (Hughes, C. J., in San- 
tovincenzo v. Egan, 284 U. S. 30, 40 (1931)).

While the international treaty making power of the 
United States of America has not changed since 1791 
the content and nature of international relations have 
undergone considerable change. It would be, to put it 
mildly, unfortunate if the United States of America were 
unable to play a full role in the international relations of 
the modern world. “ The advancement of an interest ac­
knowledged to be of international concern may be regarded 
by the United States as well as by other States as necessi­
tating restrictions upon the conduct of individuals who 
inhabit their respective territories in relation to activities 
which would appear normally to lack international signifi­
cance and to possess a merely domestic aspect. Thus, 
matters of occupation, condition of labor, the production 
and manufacture, and even the transportation of particu­
lar articles may suddenly attain an international aspect 
and to become appropriate objectives of a treaty of the 
United States. The constitutionality of the result is not 
affected by the circumstance that the federal agency is 
enabled through treaty malting to accomplish what con­
gress may remain impotent to achieve.”  Hyde, Interna­
tional Law, Vol. II, § 500 (italics added).

The problem in this case is thus whether or not the 
guarantee of human rights without discrimination is within 
the United States of America treaty power, whether or not 
the pertinent provisions of the United Nations Charter are 
constitutional and thus part of the “ supreme law of the 
land”.

The answer can hardly be doubted. The treaty involved 
is not one concluded casually between two nations. The 
United Nations representing the civilized international com­
munity were unanimous in believing that human rights 
are a matter of international concern, that individual free­
dom and international peace are inseparable, that a world



26

in which racial hatred, contempt, discrimination, segrega­
tion or other forms of interracial and inter-group humilia­
tion continue to exist within the various nations is a world 
in which there can be no lasting peace among nations. In 
other words, what the United Nations did was not unlike 
the adoption of an International Fourteenth Amendment, 
Just as the people of the United States after the Civil 
War reached the conviction that the preservation of 
certain basic individual rights within the States was a 
matter of federal concern and a condition of the national 
peace, the United Nations after the Second World War 
reached the conclusion that the preservation of these rights 
is a condition of the international peace as well. We are 
sure that no American court will hold this finding un­
reasonable.

To achieve the dual ideal—of individual equality within, 
and of peace among the nations—much concerted effort on 
all levels of domestic and international life, will be needed. 
Modest as the problem of the relations among the Latin 
and Anglo-Saxon children of Orange County, California, 
may appear to a superficial observer, in reality that prob­
lem is in its nature not dissimilar from those confronting 
the world at large. The solution of these apparently “ small” 
or “ local” problems can have an important cumulative 
effect. History has assigned a great role and a great 
responsibility to the United States. Her courts cannot 
and will not refuse to play their part. Faithful to the 
traditions of judicial statesmanship they will accept their 
share of American responsibility.



27

POINT TWO

Whenever inhabitants of the United States are classi­
fied, for purposes of official action, according to their 
race, color, creed, national origin or ancestry, whether 
or not such classification is based on discriminatory 
social or legal notions o f “ inferiority”  or “ superiority”  
of the various groups, the very fact of official differen­
tiation according to racial, religious or national criteria 
is an unreasonable and inadmissible classification and 
a violation o f the Constitution of the United States and 
of treaties entered into under its authority.

1. The preceding discussion has proved, we submit, that 
the classification adopted by the Westminster School of 
Orange County and the ensuing segregation of children of 
Mexican or Latin descent represent a discriminatory and 
harmful denial of equality of treatment of these children. 
The present part of our argument aims to prove that, even 
if no discrimination against, and no harm to, the children 
of Mexican or Latin descent had been shown and even 
if the educational facilities enjoyed by them were in every 
sense “ equal” to those enjoyed by the Anglo-Saxon group 
of children, nevertheless the classification adopted by the 
School District would be unconstitutional. In other words, 
we believe that compulsory segregation would be uncon­
stitutional even in a supposed case of segregation of French 
from English children where no badge of inferiority could 
he imputed with respect to either group.

-■ Generally speaking, the validity of a classification 
depends on whether or not the criteria of classification 
adopted by a legislature or administration are in fact rele­
vant to the subject matter of official action, whether or 
not they bear a reasonable relation to its legitimate pur­
pose. In some cases, however, this factual inquiry into the 
relevancy of a given classification may be unnecessary and



the criterion of classification may be outlawed or declared 
inadmissible or its irrelevancy may be presumed conclu­
sively as a matter of law.

Such rule of total inadmissibility, put beyond the reach 
of factual appraisal of relevancy or reasonableness, has 
been expressly laid down in the Fifteenth Amendment with 
respect to the right to vote. Hence, any attempt to dis­
tinguish between the voting rights of different racial groups 
must be declared unconstitutional without any investiga­
tion as to the conceivable reasonableness of the rule under 
some particular circumstances. The same approach, we 
believe, must be adopted in other fields of legal regulation. 
We submit that under the present conception of the politi­
cal relationship between the various racial, religious, na­
tional and ethnic groups comprising the American Common­
wealth, attempts to base a legal regulation upon a dis­
tinction between these groups is in itself inconsistent with 
the basic principles of the Federal Constitution and a 
violation of its due process clauses. State action being 
involved in the present case, the violated provision is that 

. of the Fourteenth Amendment.
Chief Justice Stone, speaking for a court unanimous on 

this point, said in Hirabayashi v. United States, 320 U. S. 
81, 100 (1943): “Distinctions between citizens solely be­
cause of their ancestry are by their very nature odious 
to a free people whose institutions are founded upon the 
doctrine of equality. For that reason legislative classifica­
tion or discrimination based on race alone has often been 
field to be a denial of equal protection.”

Mr. Murphy, in a concurring opinion, felt that racial 
distinctions based on color and ancestry “ are utterly incon­
sistent with our traditions and ideals. They are at vari­
ance with the principles for which we are now' waging war. 
We cannot close our eyes to the fact that for centuries the 
Old World has been torn by racial and religious conflicts 
and has suffered the worst kind of anguish because of in­
equality of treatment for different groups. There was 
one law for one and a different law for another. Nothing



29

is written more firmly into our law than the compact of 
the Plymouth voyagers to have just and equal laws” (pp. 
110-111 ) .

The Columbia Law Review, in commenting upon this 
case editorially, remarked:

“ Prohibition against racial discriminations has a mean­
ing and a real function in society only if it is applied 
regardless of their alleged or actual relevancy. Rea­
sonable men might indeed consider some racial dis­
criminations relevant to many measures of various 
character. The objection to their validity is to be 
found in a political or moral philosophy which pre­
sumes their irrelevancy and places the principle beyond 
the factual appraisal by legislatures or courts. This 
presumption may be doctrinary and unrealistic, but it 
represents the very core of ‘the doctrine of equality’ 
upon which, in the words of the Court, the institutions 
of a free people are based” (43 Col. L. R. 951, 952).

To sum up, in the words of Justice Harlan, “ Our Con­
stitution is color blind”. Plessy v. Ferguson, 163 U. S. 
537, 559 (1896). A classification for purposes of govern­
mental action, based on color, creed or nationality is, con­
stitutionally speaking, a meaningless classification, and 
hence an unconstitutional one. Cf. Gulf, Colorado & S. F. 
By. v. Ellis, 165 U. S. 150, 165 (1897).

3. The political and sociological meaning of the doctrine 
of constitutional color-blindness we urge here consists in 
the fact that it is predicated—unlike the challenge on ground 
of discriminatory denials of equal protection—not on the 
damage to the victims of prejudice but on the harm done 
to our society at large. We urge the disregard of racial 
and religious differences not for the sake of minorities 
alone. Freedom and justice are indivisible. In reality the 
slave owner and the persecutor carry their share of the 
burden inherent in the system. In the words of Mr. 
Mvrdal, supra :

“Segregation and discrimination have had material 
effects on white, too. Booker T. Washington’s famous 
remark, that the white man could not hold the Negro



30

in the gutter without getting in there himself, has 
been corroborated by many white Southern and North­
ern observers. 'Throughout this book we have been 
forced to notice the low economic, political, legal, and 
moral standards of Southern whites—kept low because 
of discrimination against Negroes and because of ob­
session with the Negro problem. Even the ambition 
of Southern whites is stifled partly because, without 
rising far, it is so easy to remain ‘superior’ to the held- 
down Negroes. The Southern whites are tempted to 
remain on low levels of sexual morals, thrift, industri­
ousness, reliability, punctuality, law observance and 
everything else” (V. 1, p. 644).

Nor is there dearth of evidence to support Myrdal’s 
observations. As early as 1849, Mr. Charles Sumner, 
eminent attorney and later a member of Congress, argued 
in Roberts v. City of Boston, 5 Cush. (Mass.) 198, that 
“ separation of the schools, so far from being a benefit to 
botli races, is an injury to both. It tends to create a feeling 
of degradation in the blacks, and of prejudice and unchari­
tableness in the whites” .

More recently evidence has been gathered with respect to 
the felicitous results obtained in non-segregation schools. 
Thus, Frances Blascoer observed in Colored School Chil­
dren in New York, 1915 (p. 10): “ The law of New York 
State provides that there shall be no separation of races 
in the schools; and in those districts in which colored 
pupils have been attending school for years, the principal 
and teachers apparently have no ‘color problem’ in their 
minds. The majority of them * * * said that, so far as the 
school is concerned, the colored child presents the same 
problems as the white child.”

Lloyd W. Warner in New Haven Negroes, New Haven, 
1940, says (p. 277):

“ * * * children in New Haven are not taught color 
consciousness in the schools and develop it only slowly 
from outside influences. There is no discrimination 
in the New Haven public-school system * * *. There 
are colored children in four out of every seven schools



31

in the city, and in none are they segregated by class, 
seat, or section. Reports indicate, also, that the white 
teachers make no distinction in their treatment of the
two races * * *.

“ In many early grades, white and black children 
romp and learn together. Negroes compete without 
restraint or embarrassment # * and, if proficient, are
cheered and honored. They debate, sing, and act in 
dramatics, generally without discrimination.”

Page 279:
“There is no feeling of difference among fellow teach­
ers, white or black. They entertain each other so­
cially and make friends, eat, banquet, talk and play 
cards together. They are united against discrimina­
tion when it shows itself.”

4. The prohibition of distinctions, whether or not dis­
criminatory, based on race, language and religion, is also 
part of the United Nations Charter (Art. 55c).

It is earnestly urged that Article 55c of the United 
Nations Charter is intended to prevent not only discrimi­
nations but also mere “distinctions” as to race, color, lan­
guage or religion from becoming operative through any 
State enactment or regulation which affects human rights 
or fundamental freedoms. Segregation founded solely upon 
racial or language grounds employs, to say the least, a rule 
of “distinction as to race, color, language or religion”. In 
the instant case the distinction was made between “persons 
of Mexican ancestry” and “ white persons” or between the 
Spanish and English speaking groups. Such distinction 
is therefore clearly within the Charter’s prohibition even 
when accompanied by equal facilities.

The ratification of the Charter gives rise to an overriding 
federal policy which, according to Article 6 of the Consti­
tution, is the supreme law of the land. The distinction 
based on nationality or language adopted by the appellant 
School District is thus a violation both of the Fourteenth 
Amendment and of Article VI of the Constitution read in 
connection with a duly ratified treaty.



32

POINT THREE

Segregation by official action of a State or its sub­
divisions of children of a more recent immigrant for- 
eign language group from children of less recent immi­
grant English speaking groups of Americans is incon­
sistent with the basic purposes, policies and provisions 
of the federal naturalization laws and therefore an 
unconstitutional interference with a valid federal regu­
lation.

Article I, paragraph 8, clause 4 of the United States 
Constitution delegates to the federal government the 
power “To establish a uniform rule of naturalization.” 
No State law or custom can obstruct the legitimate exer­
cise of this federal power or the implementation of the 
corresponding federal policies. Chirac v. Chirac, 2 Wheat. 
259 (1817); Scott v. Sandford, 19 How. 393 (1857). The 
United States Supreme Court recently declared invalid 
a Virginia statute requiring segregation in interstate bus 
travel because it conflicted with federal policy in interstate
commerce. Morgan v. Virginia,.......U. S......... . (1946), 66
S. Ct. 1050 (decided June 3, 1946). Any State law or 
regulation which conflicts with federal policy in the field 
of immigration and naturalization should be held uncon­
stitutional a fortiori.

There is hardly an institution in American law and 
society which plays a more important role than that of 
naturalization. “We should not overlook the fact”—-the 
Supreme Court of the United States has warned recently 
in a case concerned with naturalization—“ that we are a 
heterogeneous people. In some of our larger cities a major­
ity of the school children are the offsprings of parents 
only one generation, if that far, removed from the steerage 
of the immigrant ship, children of those who sought refuge 
in a new world from the cruelty and oppression of the old • 
Murphy, J., in Schneiderman v. U. S., 320 U. S. 118, 120 
(1943).’



How can this “heterogeneous people” {supra) be shaped 
into a nation? How can “ a country whose life blood came 
from an immigrant stream” (Black, J., speaking for a 
unanimous court in Ex parte Kurnezo Kawato, 317 U. S. 
69, at 73) become and remain a truly united country? How 
can children so close to “ the steerage of an immigrant ship” 
become part and parcel of a commonwealth already rich 
in experience and traditions? In other words, how can 
the federal law prescribing so short a term for naturaliza­
tion achieve its basic policy?

One of the answers to these questions is the existence 
of a school where children from heterogeneous backgrounds 
come together, study, live and work together and acquire 
in the formative years of their lives that mutual under­
standing and respect without which the existence of a free 
country is inconceivable. “ In its administration of the 
naturalization law [the naturalization authorities rely on] 
the cooperation of the public school authorities throughout 
the United States” (Dept, of Justice, Immigration and 
Naturalization Service, Monthly Review, August, 1943, 
Vol. 1, p. 5).

Representative Adolph J. Sabath, speaking before a 
House Subcommittee on Immigration and Naturalization, 
69th Congress (Second Session), February 17, 1927, de­
scribed the process of Americanization in Chicago schools 
and emphasized the value of children of different national 
origins attending the same schools. He said:

“ * * * we have a great many schools and a great 
many high schools where the children of different 
peoples, sometimes half a dozen different stocks and. 
nationalities, attend the same school. They show noth­
ing but a friendly feeling toward one another, and that 
hatred that was born wTith their parents abroad has 
disappeared and they are all acting like and trying to 
become good American boys and girls and good Ameri­
can citizens” (p. 13, italics added, Hearing No. 69.25).

More recently the Department of Justice stated inter 
nlia the following objectives of the naturalization policy:

“ The Objectives of Human Relationship—To estab­
lish and maintain a home in keeping with the principles



34

of democracy; to bridge the gap between immigrant 
parents and their American born children; to break 
down racial prejudice by associating with English- 
speaking people; to participate in the social and cul­
tural aspects of American life” (italics added; Dept 
of Justice, Immigration and Naturalization Service, 
Monthly Rev., December, 1945, Vol. I ll, No. 6, pp, 
233, 237).

We submit that the existence of schools in which chil­
dren less far removed from the steerage of an immigrant 
ship, children with a foreign language background, are 
segregated by State action from children of the Anglo- 
Saxon, English speaking group is inconsistent with that 
policy of rapid and full adjustment of immigrants upon 
which the federal naturalization law, with its short resi­
dential requirement is predicated. Former Attorney Gen­
eral Biddle in a recent statement emphasized the necessity 
that an immigrant “when he becomes a member of our 
American society, presumably looking forward to the pos­
sibility of American citizenship, should have the benefit 
of the training and education best calculated to develop in 
him a sense of responsibility to the country of his choice", 
The federal government has engaged in a wide program 
aimed at the adjustment and “Americanization” of immi­
grants. In these efforts the government can have no more 
powerful allies than the immigrants’ children. Throughout 
American history millions of immigrant parents have 
learned English, or a better English, from their children, 
Millions of grandparents have mastered the rudiments of 
the language to speak with their grandchildren. The “mil­
lions of immigrants who”—in the words of the Supreme 
Court—“have learned to love the country of their adoption 
more than the country of their birth” {Ex parte Kumezo 
Kawato, 317 U. S. at 73) did so mainly because they saw 
the children whom they had brought with them and those 
to whom they had given birth here were happy in the coun­
try of their adoption. When an immigrant father can say, 
be it in a broken English, “You could not tell my son from 
a real American”, he truly becomes an American himself, 
It is in the happiness of his children that he fully realize



35

the value of life free from that “ fear * * * of further exile” 
(.Schneiderman v. U. S., 320 U. S. 118, 120) which the 
immigrants sought on these shores, the full value of Ameri­
can citizenship, “ by many * * * regarded as the highest 
hope of civilized men” (id,, p. 122).

When, however, the immigrant children are treated as 
too “dirty” to be allowed in the same schools as “ real” , 
Anglo-Saxon Americans, when they are segregated and 
humiliated, hampered in their adjustment, made insecure 
and unhappy—the main presupposition of the optimistic 
federal law and policy is destroyed by a State action, which 
is arbitrary per se and inconsistent with the federal policy.

All discrimination is bad and humiliation of any human 
being because of his creed or language is unworthy of a 
free country. But none is so vicious as the humiliation of 
innocent, trusting children, American children full of faith 
in life. Their humiliation strikes at the very roots of the 
American Commonwealth. Their humiliation threatens the 
more perfect union which the Constitution seeks to achieve.

It is the awareness of that danger and the desire to 
counteract it that has prompted the submission of this 
brief.

[Respectfully submitted,
W ill  M aslow
P auli M urray

212 West 50th Street
Few York 19, N. Y.

A n n e  H . P ollock
6431 Lindenhurst Ave.

Los Angeles, Calif.
Counsel for American Jewish Congress

Alexander H . P ekelis 
Professor, Graduate Faculty 
New School for Social Eesearch 
New York, F. Y.

Special Advisor
October, 1946











T he H ecla  P ress : : N ew  York



IN THE UNITED STATES CIRCUIT COURT OF 
APPEALS FOR THE N IN TH  CIRCUIT

-  -s

Westminster School D istrict of Orange 
County, et a.l.,

vs.
Appellants,

Gonzalo Mendez, et al.,
Appellees.

No. 11,310 
Aug. 1,1947

STEPHENS, Circuit Judge.
Correction and Explanation.

The decision in the case of Roberts v. City of Boston, 5 Cush. 
198, cited in the majority opinion in the above entitled case (April 
14, 1947), was not founded directly upon a state statute. A state 
statute granted certain discretionary powers to an elected School 
Committee, but these powers did not specifically provide for any 
segregation of school children on the basis of race or color. How­
ever, Boston'had long conducted separate schools for colored school 
children. Shortly before institution of the case (the case antedated 
the Civil War), which was for damages allegedly suffered by the 
plaintiff, a colored child, for being excluded from the school nearest 
her residence, the School Committee had adopted a resolution ap­
proving the policy of continuing the separate schools. The decision 
in the case upheld the acts of the Committee.

In footnote 5 it is erroneously stated that Mr. Justice Holmes 
wrote the opinion in Truax v. Raich, 239 U.S. 33. Mr. Justice 
Hughes, as an associate justice, wrote the opinion in that case.

In the majority opinion, § 8004 Calif.Ed.C. should have been 
cited as well as § 8003. Both of these sections have been repealed 
(effective ninety days after June 14, 1947) since the decision in 
this case.

The case of Lopez v. Seccombe, No. 3158-Y (S.D. Calif.), cited 
and commented upon in the concurring opinion, went to uncon-





IN  THE

Supreme Court of #jno
A ppeal prom  the  Court op A ppeals op 

Cuyahoga County

CLAUDE WRIGHT,
Plaintiff-Appellee, 

vs.
THOMAS M. GARBET,

Defendant-Appellant.

MOTION AND BRIEF FOR THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT 
OF COLORED PEOPLE AS AMICUS CURIAE.

T hurgood M arshall 
M arian W y n n  P erry 
F ranklin  H. W illiams 

20 W. 40th Street 
New York 18, New York

Chester K . G illespie

406 Euclid Avenue 
Cleveland, Ohio

Counsel for National Association 
for the Advancement of Colored 
People as Amicus Curiae





I N D E X

PAGE

Motion for leave to file a brief as Amicus Curiae_____ 1
Brief for the National Association for the Advance­

ment of Colored People as Amicus Curiae_________  1
Statement of Pacts________________________    3
Summary of Argument_______________________  5
Argument:
I. The Statute Applies to a Retail Grocery 

Store ____________________________________  5
A. Legislative Intent _____________________  6
B. Common and Legal Definition of Lan­

guage of the Statute___________________  7

II. Legislation Forbidding Discrimination by a 
Retail Grocery Store Among Customers Be­
cause of Color or Race Is a Proper Exercise 
of the Police Power of the State and Does 
Not Violate the Fourteenth Amendment of 
the Constitution __________________________ 9
A. The Purpose of the Fourteenth Amend­

ment __________________________________  9
B. Private Business May Be Regulated for

the Public Welfare______________________  11
C. In Determining Whether Legislation Is

Reasonable, the Court Is Limited to a 
Finding of Whether or Not a Rational 
Basis Exists for the Action of the Legis­
lature __________________________________  16

D. Social and Economic Factors Make Nec­
essary and Proper the Legislative Re­
quirement That Retail Stores Not Dis­
criminate Against Negroes______________  18

Conclusion ___________________________________  22



TABLE OF AUTHORITIES CITED

Cases
PAGE

Anderson v. State, 29 0. C. A. 61, 300 C. D. 510----------  8
Belt Bros. v. Maxwell, 215 N. C. 10, 200 S. E. 915, 122

ALE 687 __________________________________________7
Bridgeman v. Derbv, 104 Conn. 1, 132 At. 25, 45 ALB 

728___________ __________________________________7
Carmichael v. Southern Coal & Coke, 301 XT. S. 495, 57 

Sup. Ct. 868, 81 L. Ed. 1245 (1936)________________  16
Donnelly v. U. S., 276 IJ. S. 505, 45 Sup. Ct. 400, 72 L.

Ed. 676 (1927)___________________________________ 6
Fowler v. Brenner, 130 X. P. (X. S.) 313, 230 O. D.

(N. P.) 59__________________________________________8
Golden Valley y. Lundin, 52 N. D. 420, 203 X. W. 317__ 7
Gooch y. IJ. S., 297 U. S. 124, 56 Sup. Ct. 683, 80 L. Ed.

1383 (1936)_______________________________________ 6
Great Atlantic & Pacific v. Grosjean, 301 IT. S. 412, 57

Sup. Ct. 772, 81 L. Ed. 1193 (1936)________________  14
Guy v. Amusement Co., 7 Ohio App. 509, 280 C. A. 231,

300 C. D. 77________________________________________8
Harvey, Inc. v. Sissle, 6 O. O. 251 (App.) (1936)______ 6
Marsh v. Alabama, 90 U. S. 227 (advance sheets)____ 11,15
Messenger v. Xebraska, 25 Xebraska 674____________  15
Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77____________ 14
X. L. E. B. v. Jones & Laughlin, 301 U. S. 1, 57 Sup. Ct.

615, 81 L. Ed. 893 (1936)_________________________  16
Xebbia v. Xew York, 291 U. S. 502, 54 Sup. Ct. 505, 78 

L. Ed. 940 (1933)___________________________ 12,13,14
Old Dearborn v. Seagrams, 299 U. S. 183, 57 Sup. Ct.

139, 81 L. Ed. 109 (1936)___________________________ 17
Olsen v. Xebraska, 313 U. S. 236, 61 Sup. Ct. 862, 85 L.

Ed. 1305 (1940)_______________________  13



I l l

PAGE

Petty v. State, 58 Ark. 1, 22 S. W. 654________________  8
Pitts v. City, 72 Miss. 181, 16 So. 418_________________  8
Railroad v. Gokus, 4 Ohio App. 276_________________  8
Radice v. New York, 264 U. S. 290, 44 Sup. Ct. 325, 68

L. Ed. 691 (1923)________________________________  17
Railway Mail Assoc, v. Corsi, 326 U. S. 88, 65 Sup. Ct.

1483, 89 L. Ed. 2072 (1945)______________________  10
Ribnik v. McBride, 277 IJ. S. 355, 47 Sup. Ct. 426, 72

L. Ed. 729 (1927)________________________________  12
Richards v. Washington Fire, 60 Mich. 420, 27 N. W.

586 ____________________________ .1_______________  8
Sage Stores v. Kansas, 323 U. S. 32, 65 Sup. Ct. 9, 89

L. Ed. 25 (1944)____________________T____________  16
Slaughter-House Cases, 83 U-. S. 36, 16 Wall. 36, 21 L.

Ed. 394 (1873)________ __________________________ 9
Solomon v. Pioneer Co-op Co., 24 Fla. 374___________  8
Sparrenberger v. State, 53 Ala. 481__________________  8
State v. Atlantic Coast Line, 56 Fla. 617, 47 So. 969____ 7
State v. Livingston Concrete, 34 Mont. 570, 87 Pac. 980 7
Strauder v. West Virginia, 100 IJ. S. 303, 25 L. Ed. 664 9
P. S. v. Carotene, 304 TJ. S. 144, 58 Sup. Ct. 778, 82 L.

Ed. 1234 (1937) _________________________________ 16
U. S. v. P. Koenig Coal Co., 270 U. S. 512, 46 Sup. Ct.

392, 70 L. Ed. 709 (1925)________________________  6
U. S. v. Lacher, 134 U. S. 624, 10 Sup. Ct. 625, 33 L.

Ed. 1080 _______________________________________  7
II S. v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37__________  6
West Coast Hotel v. Parrish, 300 H. S. 379, 57 Sup. Ct.

578, 81 L. Ed. 703 (1936)________________________  16
Wolff v. Court of Ind. Relations, 262 U. S. 522, 43 Sup.

Ct. 630, 67 L. Ed. 1103 (1922)____________________  12

Statutes
Michigan Statutes, Sec. 17115-146___________________  17
New York, Civil Rights Law, Sec. 40_______________  17
Ohio General Code, Sec. 12940-1________________ 3, 4, 5, 22
II S. Constitution Amendment X III________________   9
IJ- S. Constitution Amendment XIV_________ ___2, 9,11, 22





IN  TH E

Supreme Court of #f)to
A ppeal from the  Court of A ppeals of Cuyahoga County.

Claude W right,
Plaintiff-Appellee, 

vs.

Thomas M. G-arbet,
Defendant-Appellant.

MOTION FOR LEAVE TO FILE BRIEF AS 
AMICUS CURIAE.

To the Honorable, The Chief Justice and the 
Associate Justices of the Supreme Court 
of the State of Ohio:

The undersigned, as Counsel for the National Associa­
tion for the Advancement of Colored People, respectfully 
move this Court for leave to file the accompanying brief 
as Amicus Curiae in the above entitled appeal.

The National Association for the Advancement of Col­
ored People is a membership organization which for thirty- 
five years has dedicated itself to and worked for the achieve­
ment of functioning democracy and equal justice under the 
Constitution and laws of the United States.

Prom time to time some justiciable issue is presented 
to this Court, upon the decision of which depends the course 
for a long time of evolving institutions in some vital area 
of our national life. Such an issue is before the Court now.



2

In the above entitled appeal, this Court is asked to decide 
whether the application of a civil rights statute to the op­
eration of a retail grocery store violates the Fourteenth 
Amendment to the United States Constitution.

It is to present written argument on this issue, funda­
mental to the good order, welfare and safety of the com­
munity, that this motion is filed.

T hurgood M arshall 
M arian W yn n  P erry 
F ranklin  H. W illiams 
Chester K. G illespie

Counsel for National Association 
for the Advancement of Colored 
People as Amicus Curiae



IN  THE

Supreme Court of
A ppeal from the  Court of A ppeals of Cuyahoga County.

Claude W right,
Plaintiff-Appellee,

vs.

Thomas M. Garbet,
Defendant-Appellant.

BRIEF FOR THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE AS 

AMICUS CURIAE.

Statement of Facts.

The plaintiff-appellee is a Negro and the defendant- 
appellant is the owner and operator of a retail grocery 
store. This is an appeal from a judgment of the Court of 
Common Pleas of Cuyahoga County, in which the plaintiff 
recovered damages provided in Section 12941 of the General 
Code of Ohio after a jury had found that the defendant- 
appellant had violated Section 12940 of the General Code 
of Ohio by refusing to sell merchandise to the plaintiff- 
appellee because of his color.

The applicable sections of the General Code of Ohio are 
Section 12940:

“ (Denial of privileges at restaurants, stores and 
other places by reason of color or race.) Whoever,

3



4

being the proprietor or his employee, keeper or 
manager of an inn, restaurant, eating house, barber 
shop, public conveyance by air, land, or water, thea­
ter, store or other place for the sale of merchandise, 
or any other place of public accommodation or 
amusement, denies to a citizen, except for reasons 
applicable alike to all citizens and regardless of color 
or race, the full enjoyment of the accommodations, 
advantages, facilities or privileges-thereof, or, being 
a person who aids or incites the denial thereof, shall 
be lined not less than fifty dollars nor more than five 
hundred dollars or imprisoned not less than thirty 
days nor more than ninety days, or both. ’ ’

and Section 12941:

“ Further Penalty. Whoever violates the next pre­
ceding section shall also pay not less than fifty dol­
lars nor more than five hundred dollars to the person 
aggrieved thereby to be recovered in any court of 
competent jurisdiction in the county where such 
offense was committed. (91v. 17 S 2 .)”

On this appeal, the defendant-appellant questions the 
power of the state to regulate a retail grocery store in the 
manner provided by Section 12940 and further questions 
whether the words in the statute “ store or other place for 
the sale of merchandise”  are meant to apply to a retail 
grocery store.



5

Summary of Argument.

I.
The Statute Applies to a Retail Grocery Store.

A. Legislative Intent.

B. C om m on and L egal D efin ition  o f  L anguage o f  the Statute.

II.
Legislation Forbidding Discrimination by a Retail Grocery 
Store Among Customers Because of Color or Race Is a 
Proper Exercise of the Police Power of the State and Does 
Not Violate The Fourteenth Amendment of the Constitution.

A. T he P urpose o f  the F ourteen th  A m en dm en t.

B. P rivate Business M ay B e R egu la ted  fo r  the P u b lic  W e lfa r e .

C. In D eterm ining W h eth er  L eg is la tion  Is R eason ab le , the 
C ourt Is L im ited  to a F ind ing o f  W h eth er  or  N ot a R ationa l 
Basis Exists f o r  the A c tio n  o f  the Legislature.

D. S ocia l and E con om ic  F actors M ake N ecessary  and P rop er  
the L egis la tive  R equ irem en t T h a t R eta il S tores N ot D is­
crim inate A g a in st N egroes .

A R G U M E N T .

I.
The Staute Applies to a Retail Grocery Store.

The statute involved herein, Ohio G. C. Sec. No. 12940, 
applies to a retail grocery store. The specific provision of 
the statute subjecting such a store to the prohibitions 
therein is, “ store or other places for the sale of merchan­
dise.”

The inclusion of a retail grocery within the meaning of 
this phrase does not violate the rule of strict construction 
of penal statutes.



6

“ The rule that penal statutes are to he strictly con­
strued in favor of persons accused is not violated by 
allowing the language to have its full meaning where 
that construction is in harmony with the context and 
supports the policy and purposes of the enactment.” 
Donnelley v. U. 8., 276 U. S. 505, 45 Sup. Ct. 400, 72 
L. Ed. 676 (1927).

. . while penal statutes are narrowly construed, 
this does not require rejection of that sense of the 
words which best harmonizes with the context and 
the end in view.”  Gooch v. U. 8., 297 U. S. 124, 129, 
56 Sup. Ct. 683, 80 L. Ed. 1383 (1936).

A. Legislative Intent.

In the instant case the inclusion of a retail grocery store 
in this phrase is more obviously justified when the legis­
lative intent is considered. As stated in the case of U. 8. v. 
P. Koenig Coal Co., 270 U. S. 512, 46 Sup. Ct. 392, 70 L. Ed. 
709 (1925):

“ The rule that criminal statutes are to be strictly 
construed has no application when the general pur­
pose of the legislature is manifest, and is subserved 
by giving the words used in the statute their ordinary 
meaning, and thus covering the acts charged.”  See 
also U. 8. v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37 
(1820).

The intent of the Ohio Legislature in amending G. C. 
No. 12940 to include the words “ store or other place for 
the sale of merchandise”  is readily ascertainable. The 
phrase was added to the statute by the legislature in 1937 
to become effective July 31, 1937. In the prior year, 1936, 
an Ohio court decided in the case of Harvey, Inc. v. Sissle 
(1936) 6 O. O. 251 (App.) that the statute in its original 
form, prior to the amendment, did not apply to a “ retail 
store” . The legislature’s act of amending the statute the 
following year, therefore, was clearly with the intent to



7

bring within its prohibitions such “ retail stores” . In con­
struing the present statute, this legislative intent must be 
the primary controlling factor.1 This is true even though 
the statute be penal in nature, for, in such cases, the con­
struction given thereto should not be intentionally techni­
cal, arbitrary or narrow.

“ But though penal laws are to be construed 
strictly, yet the intention of the legislature must 
govern in the construction of penal as well as other 
statutes, and they are not to be construed so strictly 
as to defeat the obvious intention of the legislature 
. . . To the same effect is the statement of Mr. 
Sedgwick, in his work on Statutory and Constitu­
tional Law (2d ed.) 282: ‘ The rule that statutes of 
this class are to be construed strictly is far from 
being a rigid or unbending one; or rather, it has in

, modern times been so modified and explained away 
as to mean little more than that penal provisions, 
like all others, are to be fairly construed according to 
the legislative intent as expressed in the enactment; 
the courts refusing on the one hand, to extend the 
punishment to cases which are not clearly embraced 
in them, and, on the other equally refusing, by any 
mere verbal nicety, forced construction or equitable 
interpretation, to exonerate parties. . . . ’ ”  U. S. 
v. Lacker, 134 U. S. 624, 10 Sup. Ct. 625, 33 L. ed. 
1080.

B. Common and Legal Definition of Language of 
the Statute.

The word “ store”  includes within its meaning a “ retail 
grocery store”  both by definition given to it by lexicogra-

1 Golden Valley Co. v. Lundin, 52 N. D. 420, 203 N. W. 317; 
Belk Bros. Co. v. Maxwell, 215 N. C. 10, 200 S. E. 915, 122 ALR 
687; Bridgeman v. Derby, 104 Conn. 1, 132 At. 25, 45 ALR 728; 
State v. Livingstone Concrete Building & Manufacturing Co., 34 
M ont. 570, 87 Pac. 980; State v. Atlantic Coast. Line Railroad Co., 
56 Fla. 617, 47 So. 969.



8

phers and the courts of law. “ Store”  has been defined by 
Webster as any place where goods are sold either by whole­
sale or retail and this definition has been adopted by a 
number of courts. Solomon v. Pioneer Co-op Co., 21 Fla. 
374, 385; Petty v. State, 22 S. W. 654, 655, 58 Ark. 1; Spar- 
renberger v. State, 53 Ala. 481, 483. In its ordinary ac­
ceptation and significance and the meaning commonly at­
tributable to it, the word includes a butcher shop, Petty v. 
State, supra, a bakery, Richards v. Washington Fire and 
Insurance Co., 60 Mich. 420, 27 N. W. 586, and may be any 
place for the sale of drygoods, clothing, groceries, drugs or 
any other articles of merchandise, Pitts v. City, 72 Miss. 
181, 16 So. 418.

Further, the additional phrase “ or other places for the 
sale of merchandise”  clearly includes, without ambiguity, a 
retail grocery store. Nor can it be said that such a phrase is 
so unclear as to render it inapplicable in the instant case. 
In similar cases involving the application of civil rights 
statutes to various establishments not specifically set forth 
therein, the phrase “ or any other place of public accommo­
dation and amusement”  has been held to apply to a public 
dancing pavilion, Railroad v. Gokus, 4 Ohio App. 276; 
Anderson v. State, 29 0. C. A. 61, 300 C. D. 510; a motion 
picture establishment, Guy v. Amusement Co., 7 Ohio App. 
509, 280 C. A. 231, 300 C. D. 77, and an ice cream parlor, 
Fowler v. Brenner, 130 N. P. (N. S.) 313, 230 O. D. (N. P.) 
59. By the same force and effect the phrase “ or other places 
for the sale of merchandise”  applies to a retail grocery 
store.

In the light of the legislative history and the definition 
of “ store”  adopted in other courts, appellant’s contention 
that this statute does not mean what it clearly says upon its 
face must be rejected.



9

Legislation Forbidding Discrimination by a Retail 
Grocery Store Among Customers Because of Color or 
Race Is a Proper Exercise of the Police Power of the 
State and Does Not Violate the Fourteenth Amendment 

of the Constitution.

A. The Purpose of the Fourteenth Amendment.

After the Civil War Congress enacted the 13th Amend­
ment to abolish slavery and the 14th Amendment to abolish 
the badges of servitude.

In a consideration of the Amendments in 1873 while the 
struggle for their enactment was still alive in the memory 
of the court, the Supreme Court stated in the Slaughter- 
House Cases, 83 U. S. 36, 16 Wall. 36, 21 L. Ed. 394 (1873):

“  . . . no one can fail to be impressed with the one 
pervading purpose found in them all, lying at the 
foundation of each, and without which none of them 
would have been even suggested; we mean the free­
dom of the slave race, the security and firm establish­
ment of that freedom, and the protection of the 
newly made freedman and citizen from the oppres­
sions of those who had formerly exercised unlimited 
dominion over him.”  (at p. 71).

Subsequently, in 1879, in Strauder v. West Virginia, 100 
U. S. 303, 25 L. Ed. 664, after referring at length to its deci­
sion in the Slaughter-House Cases, the Court stated:

“  What is this (the amendment) but declaring that 
the law in the States shall be the same for the black 
as for the white; that all persons, whether colored or 
white, shall stand equal before the laws of the States, 
and, in regard to the colored race, for whose protec­
tion the Amendment was primarily designed, that no

II.



1 0

discrimination shall be made against them by law be­
cause of their color? The words of the Amendment, 
it is true, are prohibitory, but they contain a neces­
sary implication of a positive immunity, or right, 
most valuable to the colored race—the right to ex­
emption from unfriendly legislation against them 
distinctly as colored; exemption from legal discrimi­
nations, implying inferiority in civil society, lessen­
ing the security of their enjoyment of the rights 
which others enjoy, and discriminations which are 
steps toward reducing them to the condition of a 
subject race.”  (at p. 308).

Subsequently, the protection of the 14th Amendment 
has, it is true, been sought by and extended to all citizens 
of the United States, white as well as colored. But this 
extension of the scope of the Amendment has not changed 
its fundamental nature, and it may not be subverted into a 
protection of an individual intent upon avoiding the proper 
exercise of the police power of a state for the protection of 
colored citizens from discrimination.

Thus, in Railway Mail Association v. Corsi, 326 U. S. 
88, 65 Sup. Ct. 1483, 89 L. Ed. 2072 (1945), the United States 
Supreme Court sustained the constitutionality of a section 
of the New York Civil Bights Law which prohibited racial 
discrimination in membership or services by a labor union. 
There the union sought the protection of the 14th Amend­
ment, on the grounds that the Civil Bights Statute was an 
interference with its right to select its membership, an 
abridgement of property rights and liberty of contract. 
The Court stated at pages 93-94:

A judicial determination that such legislation 
violated the Fourteenth Amendment would be a dis­
tortion of the policy manifested in that amendment 
which was adopted to prevent state legislation de-



1 1

signed to perpetuate discrimination on the basis of 
race or color.”  (Italics added.)

In a concurring opinion, Mr. Justice F rankfurter 
stated at page 98:

“ To use the Fourteenth Amendment as a sword 
against such state power would stultify that Amend­
ment. Certainly the insistence by individuals on 
their private prejudices as to race, color or creed, in 
relations like those now before us, ought not to have 
a higher constitutional sanction than the determina­
tion of a state to extend an area of non-discrimina­
tion beyond that which the constitution itself exacts.”

The attempt of appellant herein to place his desire to 
discriminate against Negroes beyond the pale of the state’s 
police power by resort to “ liberty of contract”  under the 
Fourteenth Amendment, must be rejected since the Four­
teenth Amendment is not intended to act as a protection 
against the valid exercise of the states’ power to protect 
Negroes from discrimination.

B. Private Business May Be Regulated for the 
Public Welfare.

In considering the contention of the appellants that 
theirs is a “ purely private business”  and therefore not 
subject to regulation by the state, it is well to consider the 
language of the United States Supreme Court in the recent 
case of Marsh v. Alabama, 90 U. S. 227 (Advance Sheets), 
decided on January 7, 1946. There the Court, in consider­
ing the right of the owner of a company town to regulate 
the use of its streets, stated:

“ Ownership does not always mean absolute do­
minion. The more an owner, for his advantage,



1 2

opens up his property for use by the public in gen­
eral, the more do his rights become circumscribed by 
the statutory and constitutional rights of those who 
use it.”

During the past two decades, there has been a growing 
awareness of the damage to society which is caused by un­
controlled use of “ purely private property” . The courts 
and the legislatures of America have recognized the re­
sponsibility of the Government to protect citizens by use of 
legislative power. With this change, there has been increas­
ing restriction of the freedom of contract and freedom to 
use one’s private property, each step in this restriction 
being predicated upon the responsibility of the Government 
to protect citizens who are helpless to protect themselves.

The old theory that the Government could regulate only 
the activities of quasi-public business such as public utili­
ties, inns and hotels, relied upon by the appellant and typi­
fied by Wolff v. Court of Industrial Relations, 262 U. S. 522, 
43 Sup. Ct. 630, 67 L. Ed. 1103 (1922), has yielded to a new 
definition of the responsibility of the Government.

The rejection of this limitation on police power began 
as early as 1927, when Mr. Justice H olmes, in his dissenting 
opinion in Ribnik v. McBride, 277 U. S. 355, 47 Sup. Ct. 426, 
72 L. Ed. 729, labelled as “ little more than a fiction”  the 
doctrine that a business can only be regulated if it had been 
so devoted to the public use as if an interest in effect had 
been granted to the public in that use.

In a subsequent case, Nebbia v. New York, 291 U. S. 502, 
54 Sup. Ct. 505, 78 L. Ed. 940 (1933), the Court reexamined 
the limits upon Government control of private industry and 
stated that such regulation is proper upon a finding “ that 
an industry for adequate reason is subject to control for 
the public good” . Thereafter the Supreme Court in an-



13

alyzing the objections to government regulation raised in 
Olsen v. Nebraska, 313 U. S. 236, 61 Sup. Ct. 862, 85 L. Ed. 
1305 (1940), used language peculiarly apt when applied to 
the reasoning of appellants in this case. There the Court 
stated:

“ In final analysis, the only constitutional pro­
hibitions or restraints which respondents have sug­
gested for the invalidation of this legislation are 
those notions of public policy embedded in earlier 
decisions of this Court but which, as Mr. Justice 
Holmes long admonished, should not be read into the 
Constitution. Since they do not find expression in 
the Constitution, we cannot give them continuing 
vitality as standards by 'which the constitutionality 
of the economic and social programs of the states is 
to be determined. ’ ’

In Nebbia v. New York, supra, Mr. Justice R oberts, de­
livering the opinion of the Court, stated:

“ Under our form of government the use of prop­
erty and the making of contracts are normally mat­
ters of private and not of public concern. The general 
rule is that both shall be free of governmental inter­
ference. But neither property rights nor contract 
rights are absolute; for government cannot exist if 
the citizen may at will use his property to the detri­
ment of his fellows, or exercise his freedom of con­
tract to work them harm. Equally fundamental with 
the private right is that of the public to regulate it 
in the common interest.”  (at p. 523).

“ No exercise of the private right can be imagined 
which will not in some respect, however slight, affect 
the public; no exercise of the legislative prerogative 
to regulate the conduct of the citizen which will not 
to some extent abridge his liberty or affect his prop­
erty. But subject only to constitutional restraint the 
private right must yield to the public need.”  (at p. 
525). (Italics added.)



14

The appellants seek to convince this Court that there are 
inherent differences between a business which renders ser­
vices to the public, such as barber shops, and one making 
sales of merchandise to the public, and that the making of 
a sale is protected from regulation by a sweeping and 
sacred liberty of contract. This contention is specifically 
answered by the Supreme Court in the Nebbia case, supra, 
by the statement:

“ We think there is no such principle. The due 
process clause makes no mention of sales or of prices 
any more than it speaks of business or contracts or 
buildings or other incidents of property.”  (at p. 
532).2

It is therefore clear that the right is inherent in the 
State of Ohio to require a grocer not to discriminate among

2 Because the appellant in the Nebbia case had cited the case of 
Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77 (1877), which case is also 
cited by appellants herein, as fixing a limitation on the power of the 
state to regulate business not affected with a public interest, the Supreme 
Court in its opinion in the Nebbia case, reexamined the Munn case. 
Munn and Scott, according to the Supreme Court, owned the prop­
erty upon which their grain elevator was situated and conducted 
their business as private citizens. “ No doubt they felt at liberty to 
deal with whom they pleased and on such terms as they might deem 
just to themselves.” Circumstances arising out of the strategic loca­
tion of their elevator made it a “virtual monopoly” in that “ a large 
portion of the public found it highly inconvenient to deal with others.’’ 
The Supreme Court stated that the Munn case established the prin­
ciple that such “circumstances justified the legislation as an exercise 
of the governmental right to control the business in the public inter­
est ; that is, as an exercise of the police power.” In Great Atlantic 
and Pacific Tea Company v. Grosjean, 301 U. S. 412, 57 Sup. Ct. 
772, 81 L. Ed. 1193 (1936), the Supreme Court was concerned with 
the use of the taxing power of the State of Louisiana, but it recog­
nized the power of the state directly to regulate retail sales in the 
following language: “ If, in the interest of the people of the state,
the legislature deemed it necessary either to mitigate evils of com­
petition as between single stores and chains or to neutralize disad­
vantages of small chains in their competition with larger ones, or to 
discourage merchandising within the state by chains grown so large 
as to become a menace to the general welfare, it was at liberty to 
regulate the matter directly or to resort to the type of taxation evi­
denced by the Act of 1934 as a means of regulation” (at pp. 426 
and 427). (Italics added.)



15

his customers. Such a position was taken by the Supreme 
Court of Nebraska in 1889, in a civil rights case, where it 
was stated:

‘ ‘ A  barber by opening a shop and putting out his 
sign, thereby invites every orderly and well-behaved 
person who may desire his services to enter Ms shop 
during business hours. . . . The authority of the 
state to prohibit discriminations on account of color 
in places of public resort—as a barber shop—is un­
doubted and the proprietors of such shops can adopt 
and enforce no rules which will not apply to white 
and colored alike.”  Messenger v. Nebraska, 25 Ne­
braska 674.

The statute does not operate to force the appellant to 
remain in business if he does not choose to sell to Negroes. 
It merely requires of him, in the language of the Nebraska 
Court, that he not adopt and enforce rules and regulations 
which will not apply to white and colored alike so long as 
he remains in business. A comparable situation was ex­
amined by the Supreme Court in Marsh v. Alabama, supra, 
where the state court had determined “ that the corpora­
tion could if it so desired entirely close the sidewalk and 
the town to the public.”  This fact did not change the 
opinion of the Supreme Court that so long as the sidewalks 
of the town and the town itself were open to the public, the 
constitutional guarantees of freedom of religion and free 
speech could not be curtailed. Similarly, it is our conten­
tion that under the statute here involved, a shopkeeper, so 
long as he remains open for business, may be required by 
legislation not to discriminate by reason of race among well- 
behaved citizens who present themselves during regular 
business hours.

To this contention appellants argue that it is a depriva­
tion of freedom of contract. What is this freedom?

“ The Constitution does not speak of freedom of 
contract. It speaks of liberty and prohibits the



16

deprivation of liberty without due process of law. 
In prohibiting that deprivation the Constitution does 
not recognize an absolute and uncontrollable liberty. 
Liberty in each of its phases has its history and con­
notation. But the liberty safeguarded is liberty in a 
social organization which requires the protection of 
law against the evils which menace the health, safety, 
morals and welfare of the people. Liberty under the 
Constitution is thus necessarily subject to the re­
straints of due process, and regulation which is rea­
sonable in relation to its subject and is adopted in the 
interests of the community is due process.”  West 
Coast Hotel Company v. Parrish, 300 U. S. 379, 57 
Sup. Ct. 578, 81 L. Ed. 703 (1936). (at p. 391).

C. In Determining Whether Legislation Is Reason­
able, the Court Is Limited to a Finding of 
Whether or Not a Rational Basis Exists for the 
Action of the Legislature.

In the preceding sections of this brief, we have estab­
lished that under the Fourteenth Amendment, the state has 
the power to regulate private business in the public interest. 
When it is argued that a violation of either the due process 
or the equal protection clauses of the Fourteenth Amend­
ment results from such an exercise of the police power, a 
determination of the issue “ in either case would depend 
upon whether there is any rational basis for the action of 
the legislature.”  Sage Stores v. Kansas, 323 U. S. 32, 65 
Sup. Ct. 9, 89 L. Ed. 25 (1944). See also U. S. v. Carotene 
Products, 304 U. S. 144, 58 Sup. Ct. 778, 82 L. Ed. 1234 
(1937); Carmichael v. Southern Coal and Coke Company, 
301 U. S. 495, 57 Sup. Ct. 868, 81 L. Ed. 1245 (1936) and 
National Labor Relations Board v. Jones and Laughlin, 301 
U. S. 1, 57 Sup. Ct. 615, 81 L. Ed. 893 (1936). In de­
termining whether or not a rational basis existed for the



17

action of the Ohio Legislature in enacting a civil rights law 
forbidding racial discrimination among the customers of a 
retail store, the judiciary may not substitute its judgment 
of the wisdom of the legislation for that of the legislature.

“ Where the constitutional validity of a statute 
depends upon the existence of facts, courts must be 
cautious about reaching a conclusion respecting them 
contrary to that reached by the legislature; and if 
the question of what the facts establish be a fairly 
debatable one, it is not permissible for the judge to 
set up his opinion in respect of it against the opinion 
of the lawmaker; . . . since we are unable to say 
that the finding is clearly unfounded, we are pre­
cluded from reviewing the legislative determination. ’ ’ 
Radice v. New York, 264 U. S. 290, 44 Sup. Ct. 325, 
68 L. Ed. 691 (1923). See also Old Dearborn v. Sea- 
gram-Distillers Corp., 299 U. S. 183, 57 Sup. Ct. 139, 
81 L. Ed. 109 (1936).

In Point I of this brief, we showed that the legislative 
history of the Ohio Civil Rights Statute established that the 
addition of the phrase “ store or other place for the sale of 
merchandise”  followed immediately upon a decision by an 
Ohio court that the statute in its original form did not apply 
to a retail store. It must therefore have been the conclu­
sion of the legislature that it was necessary to extend the 
protection of the Civil Rights Statute to the rights of 
Negroes to purchase without discrimination in retail 
stores.3

3 The legislatures of two states have made a similar finding of 
the necessity for extending the protection of civil rights statutes to 
cover retail stores. See Section 17115— 146 of the Michigan Stat­
utes, which contains a prohibition against discrimination by “ stores” 
and Section 40 of the New York State Civil Rights Act, which 
prohibits discrimination by “ retail stores and establishments” . The 
constitutionality of these statutes as applied to retail stores has not 
been challenged in either state.



18

In the following section of the brief, we will show that 
there exists a rational basis in the social and economic 
situation of the Negro people for such legislative enact­
ment. Since such a rational basis does exist, this Court 
must uphold the constitutionality of the challenged statute.

D. Social and Economic Factors Make Necessary 
and Proper the Legislative Requirement That 
Retail Stores Not Discriminate Against Negroes.

It is in the light of the social and economic position in 
which the Negro people of America find themselves today 
that this Court must consider the reasonableness of the 
exercise of the police power of the state for the protection 
of Negro people in Ohio against discrimination in a retail 
grocery store.

If the Negro residents of the State of Ohio are not pro­
tected in their right to purchase freely on an open market 
as undifferentiated members of the general consuming pub­
lic of the State of Ohio, this restriction will result in lower­
ing their standard of living and endangering the health and 
welfare of the people of the State of Ohio.

The best example of the results of restricting the free­
dom of the Negro people as purchasers is found in housing. 
Through the use of restrictive covenants and through the 
united action of the white community to restrict Negroes to 
living in certain limited areas, the Negro pays more for 
worse housing than any comparable group in the country 
and receives less than his fair share of the housing avail­
able to the American people.

The evils which befall society as a whole as a result of 
this situation, stemming from the restriction of Negroes in 
their choice of homes, have been characterized as “  a menace



19

to the health, morals and general decency of cities and 
plague spots for race exploitation, friction and riots” . Re­
port of the Committee on Negro Housing of the President, 
Conference on Home Building, Volume 6, pages 45 and 46 
(1932).

An exactly comparable situation exists when the Negro 
citizen of America goes shopping for food or clothing. It 
is only if the Negro people are free to purchase their essen­
tial items of food and clothing in an unrestricted market, 
taking full advantage of the savings offered by large chain 
stores, large department stores or special sales to the gen­
eral public that the Negro can receive his fair share of the 
wealth of America, to which he contributes and for which he 
toils, along with his fellow Americans.

In New York City, in 1943, a special survey was con­
ducted by a student at Antioch College into the comparative 
retail prices in a Negro shopping district and five white 
shopping districts in New York City. The results are pub­
lished in a pamphlet entitled, “ Food Costs More In Har­
lem” , published by the National Association for the Ad­
vancement of Colored People. The survey showed:

“ If a housewife in Harlem, [a Negro neighborhood], 
went to her food market with the following shopping 
list :

flour, cornflakes, salmon, sugar, tub butter, face 
soap, bacon, peaches, cocoa, coffee, milk, eggs, 
pork chops, roasting chickens,

she could expect the following:
(1) to be presented with a bill for $3.88 average.
(2) but if she had purchased these things in Green­

wich Village [a white neighborhood] she would 
have had to pay only $3.65—or 5% less.



2 0

(3) if she had done her shopping in the Chelsea- 
Hell’s Kitchen area [a white neighborhood], she 
would have paid $3.75—or 4% less.

(4) by shopping on the lower east side [white neigh­
borhood], she could have paid $3.60—or 6% less.

(5) in Greenpoint [a white neighborhood], she would 
have paid $3.68—or 5% less.

(6) in the Bedford-Stuyvesant section of Brooklyn 
[a mixed neighborhood], her bills would have 
been $3.67—or 5% less.

The four white neighborhoods chosen for the 
survey were neighborhoods having considerable slum 
population where the white shoppers might be sup­
posed to have lower incomes.

For every dollar spent on food the Harlem house­
wife has to spend at least 6c. in excess of what the 
housewife in any other comparable section is re­
quired to pay. ’ ’

That this situation prevails in other sections of the 
country is shown by a United Press dispatch from Cleve­
land, Ohio, dated November 13, 1946, which appeared in the 
New York Post on November 13, 1946 as follows:

“ NEGROES BOYCOTT BUTCHERS
SAY THEY’RE OVERCHARGED

FOR POOR MEAT
Cleveland, Nov. 13 (UP)—Nearly 50,000 Negroes to­
day agreed on a two-week boycott against meat pur­
chases in Negro district markets, charging they were 
paying prices one to 11 cents a pound higher for 
poor grades than in other retail stores in the city for 
the best grades.

The boycott, to begin Friday, was called by the 
Interdenominational Ministers’ Alliance.



2 1

Charging ‘ vicious discrimination’ by the Negro 
district markets, the alliance said, ‘ Our diet during 
the boycott will consist of vegetables and dairy prod­
ucts and other meatless dishes.”

At a recent hearing before the City Planning Commis­
sion of the City of New York, the Executive Director of the 
Mayor’s Committee on Unity sought an appropriation of 
sufficient money to build a public market in Harlem basing 
his argument upon the fact ‘ ‘ that groceries and other food 
stores in Harlem charge higher prices and are less sanitary 
than comparable establishments elsewhere in the city, re­
sulting in real discrimination against Negroes.”  (As re­
ported in PM, Friday, October 25, 1946.)

Of course there are geographic reasons, reasons of 
convenience, which will result in a large number of Negroes 
shopping near their homes and thus shopping in stores 
serving predominantly Negro customers. Obviously, how­
ever, in a competitive economy they must receive fairer 
prices, better quality and a greater share of available goods 
if the stores which cater to the Negro people have to com­
pete for their trade with stores in other areas to which 
Negro shoppers will eventually go in an effort to escape 
higher prices and poor quality if they are left free to act 
as reasonable economic men in the situaticfn.

So far, our discussion has been directed at the situation 
in which there was a large Negro population in a Negro 
shopping center, but the need for the statutory protection 
embodied in Section 12940 is even more apparent when one 
thinks of a small community where only a very few Negro 
families live which has only one or two grocery stores. If 
the owners of those grocery stores were free to discriminate 
because of race against the Negro residents of such a small 
town, there would be in our present complicated and inter­
dependent society no way for the Negro people to continue



2 2

to live in a town where the food stores would not sell them 
food.

Thus it is clear that the legislature in amending the 
Civil Rights Statute to protect the Negroes’ right to pur­
chase in retail stores was using reasonable means to advance 
the public welfare.

Conclusion.

The application of Section 12940 of the Ohio Statutes to 
a retail grocery store is a valid exercise of the police power 
of the state and does not violate the Fourteenth Amend­
ment to the United States Constitution.

Wherefore it is respectfully submitted that the judg­
ment of the Court below should be affirmed.

T hxjrgood M arshall 
M arian W yn n  P erry 
F ranklin  H. W illiams 

20 W. 40th Street 
New York 18, New York

Chester K . G illespie

406 Euclid Avenue 
Cleveland, Ohio

Counsel for National Association 
for the Advancement of Colored 
People as Amicus Curiae





O'*'-

212 [5572]
Lawyers Press, I nc., 165 William St., N. Y . C .; ’Phone: BEekman 3-2300







United States Circuit Court 
of Appeals

F O R  T H E  F I F T H  C I R C U I T

N o . 1 1 ,4 9 4

J O S E P H  E . C H A P M A N , J R ., E T  A L .,  

A ppellants and Cross-A ppellees,

P R I M U S  E . K I N G ,  

Appellee and C ross-A p p ellan t  

(A N D  REVERSE T IT L E )

Appeal and C ross-A p p eal from  the District 
C ou rt o f  the U n ited  States for the 

M iddle  District o f  Georgia.

BRIEF F O R  A P P E L L E E  A N D  C R O S S -A P P E L L A N T

v.

H A R R Y S. STROZIER, 
OSCAR D. SM ITH.

Attorneys for Appellee
and Cross-Appellant.





SUBJECT IND EX

Statement of the Case ____________________________________  I
The Main Appeal __ _ __ _________________  . ______  1
The Cross-Appeal ________________________________ :_______  2

Brief of the Argument ___ 4
The Main Appeal __ ___________________________________  4

1. The Question and Its Setting   4
2. The Precedents Generally __ ____ ___ ___  ____ ______ 6
3. The Georgia Laws ____ __ _    11
4. The Supreme Court Decisions 41

The Cross-Appeal ____ ____________________________________  53
Conclusion ___  __ ____ ___________ ___________________  60

Appendix A, General Georgia Statutes _ 64
Appendix B. Special Georgia Statutes 74

A U T H O R IT IE S C ITED  
Breckon v. Board, 221 111. 9. 77

N.E. 321, 5 Ann. Cas. 562 _______________________ ______ _ 9
B. B L. Assn. v. Logan. 66 Fed. 827 _ ___ 58
Chittenden v. Brewster, 69 U . S. 191 ____  _ 58
Corpus Juris Secundum, Vol. 29, p. 146, §1 1 1  _____ 7
Grovey v. Townsend, 295 U. S, 45 ___ 42
Houchin Sales Co. v. Angert, 11 F. 2d 115 60
Johnson v. Green Forks County, 16 N .D. 353, 1 13

N.W . 1071 ______________________________________________ 10
Kellog v. Warmouth, Fed, Cas. No. 7,667 ____________________ 56
Landram v. Jordan, 203 U . S. 56 _________________._________ 58
Lane v. Wilson, 307 U . S. 208 _____________________________  57
Leonard v. Commonwealth, 112 Pa. 622, 4 Atl. 220 10
Le Tulle v. Schofield, 308 U. S. 415 ___ 58
Moller v. Herring, 255 Fed. 670 58
Mt. Pleasant v. Beckwith, 100 U. S. 514 58
Myers v. Anderson, 238 U. S. 368 56
Nixon v. Condon, 286 U. S. 73 42, 56, 61
Nixon v. Herndon, 273 U. S. 536 42, 56, 61
Norton v. State, 5 Ga. App. 586 (3) ___. ______  7
People v. Fox (111.) 128  N. E. 505, 507 ____  9
People v. Strassheim, 240 111. 279, 88 N. E. 821 9

PAGE

i



Smith v. Allwright, 321 U. S. 649
5, 7, 22, 41-53, 55, 57, 62, 63

Spier v. Baker, 120 Cal. 370, 52 Pac. 659   10
State v. Hirsch, 125 Ind. 207. 24 N. E. 1062 ______________  10
State v. Marsh, 107 Neb. 607, 187 N. W . 88   10
U. S. v. Amer. Ry. Exp., 265 U. S. 425 ___________ 58, 60
U. S. v. Classic. 313 U. S. 299 ________  4, 7, 41-53, 55. 62
U. S. v. Dashiel, 70 U. S. 688 ___________ 59

S T A T U T E S  CITED  
Acts of Georgia General Assembly—

1924, p. 329 _____ _________ _________  _________ ... 40
1925, p. 721 ...... _............. _ ______ 22, 23. 39
1927, p. 632 _____ _______________________________________  40
1937, p. 1449 _ ______ ____________  40
1937-38, Ex. Sess., p. 371 __________    18
1937-38, Ex. Sess., p. 854     41
1939, p. 311 _______________________________________________ 33
1941, pp. 324, 429 ___________________________ _____________  21
1943, p. 347 _______________________________________________  32
1943. p. 353 ____ _________  17
1943, p. 441 _________________________________________   35
1943, p. 480 ___ _ ....................  35
1943, p. 535 __________________________    18
1943, p. 944 __________________________________________    39
1943, p. 951 _ _ __ __________________________________  40
1944, Ex. Sess., p. 1, et seq. ______________ _____ 27, 36, 37, 38

Code of Ga. of 1933 and Ann. Code—
§ 2-608 _________________________________ L _ ____ 12
§ 2-1001 ___________________________________________________  12
§§ 3 4 -1 0 1 .3 4 -1 0 4 ,3 4 -1  1 1 .3 4 -1 1 5  _ 13
§ 34-202 ______________________________  ___ 14
§ 34-203 ___ _______________________________________________  14
§§ 34-301 to 34-303 ____  _ ___ 15
§ 34-401 ________ _________________________________  14, 15
§§ 34-403, 34-404 _________________________________________  15
§§ 34-405, 34-407 ________________   16

AUTHORITIES CITED— (Continued)
PAGE

ii



§ 34-1902 _________  ________________________________ 18. 20
§ 34-1903 ___________ _________________________ ___________  19
§ 34-1904 ______  __ ________________________________  19. 28
§§ 34-1906, 34-1907 ............__________ ... ___________  ._ 20
§§ 34-1908, 34-191 1, ... 1 9 ,2 0
§§ 34-2001. 34-2002 .... ......... .________________  _______  34
§ 34-3201 ______________________________ ..___________  7, 23, 24
§ 34-3202 ... ._ ______  _. ._.... ______ _..... . . 25
§ 34-3203 __________________________________________________  26
§ 34-3205 ____________________...__________________________ __  25
§ 34-3206 . . ____  ... __________  .... ______  .. 27
§ 34-3207 __________________________________ 1 ..;____________  26
§ 34-3208 ______________________________________.'__________ 28
§ 34-3209 _________      2 3 ,2 4
§ 34-3211 ......_______________________________________________  29
§ 34-3212 _________________...._____________ 2 7 ,2 9 ,3 0 ,3 1 ,3 2
§ 34-3213 ______________________________________________  30, 31
§ 34-3214 __________________________________________________  30
§ 34-3215 . .... ____________________________   31
§ 34-3217 ..... ______ __________________________________ ... 32
§ 34-3218 . ... ____  __ __ ____ ........... ..........  28
§§ 34-3301 to 34-3315 __________________________    35
§§ 34-3401, 34-3402 ________________________________________ 36
§ 34-3404 __________________________________________________  26
§§ 34-9922 to 34-9926 _____________      38
§ 34-9928 __________________________________________________  38
§§ 58-609, 58-610 _____________________________    12
§ 64-101 ___________    34

Supplement to Ga. Code Ann.—
§ 34-409 ____________________________________________________ 17
§ 34-411 ____________________________________________ 17
§ 34-1305   18
§ 34-1904 _____________________________________________ 19, 20
§ 34-200la _ ._ ........... _ ...... .. . _______  35
§§ 34-1914 to 34-1921 ____________________________________  21
§§ 34-2003 to 34-2005 ..._________________________  ____  35

Code of Ga. of 1933 and Ann. Code— (Continued)

PAGE

iii



§ 54-3215a ________________________________________________  32
§§ 34-3219 to 34-3222   33
§§ 34-3223 to 34-3236    33
§ 34-3301 ... _________________________________________ 35
§ 34-3309 _ ______________________________________________  35
§ 34-3401 ..... ___________________________   36
§ 34-3402 _________     36
§ 34-9933 _________________________________________________  39
§ 34-9934 . . ____________________________________________  38
§ 34-9935 _________________________________________________  38

U. S. C. A.. Tit. 8, § 31 _______________________________  6, 55,57
U. S. C. A.. Tit. 8, § 43 ________________________________  55,57

Supplement to Ga. Code Ann.—  (Continued)
PAGE

iv



U N I T E D  S T A T E S  
C I R C U I T  C O U R T  O F  A P P E A L S  

F O R  T H E  F I F T H  C I R C U I T

N o . 1 1 ,4 9 4

J O S E P H  E . C H A P M A N , J R ., E T  A L .,  
A ppellants and Cross-A ppellees, 

v.
P R I M U S  E . K IN G ,

Appellee and C ross-A p p ellan t
(A nd Reverse T it l e )

Appeal and C ross-A p p eal from  the District C ou rt  
o f the U n ited  States for the M iddle  District 

o f Georgia

BRIEF F O R  A P P E L L E E  A N D  C R O S S -A P P E L L A N T

S T A T E M E N T  O F  T H E  C A S E  

TH E M A IN  APPEAL

The facts stated in appellants’ brief are correctly 
stated.

Appellants’ statement, however, om its reference to 
certain facts agreed on and contained in the stipulation, 
which Appellee deems material. These are as fo llo w s :

In the eight presidential elections held in Georgia  
from 1 91 6  to 1 9 4 4 , inclusive, the popular vote for the 
Democratic candidates has overw helm ingly exceeded the 
votes cast for all other candidates, in proportions rang­
ing from about 11 to 1 to 3 to 1, except in 1 9 2 8 , when  
it was only about one-third more. T h e  votes for these 
years are show n in the Record (p . 1 7 ) .

In the five presidential elections held from  1 9 2 8  to 
1944, inclusive, the Dem ocratic candidates have carried

1



158 o f the State’ s 159 counties, except that in 1928, 
M r. H oover, the Republican candidate, carried 4 9  coun­
ties and in 1 9 3 2  M r. H oover carried tw o. (R . p. 1 8 ).

Appellee contends that these facts are material for 
the fo llow ing reasons: T h e y  show  the overwhelming 
strength o f the Democratic Party in Georgia. A n d , con­
sidered w ith the further facts that no other parties hold 
primaries in Georgia (R ., p. 17 , par. 8 )  ; that the Demo­
cratic Party always holds a prim ary preceding a biennial 
election (R ., p- 2 7 , par. 2 6 ) ;  and that the nominees 
o f Democratic primaries are alw ays elected in the en­
suing general election (R ., p. 16 , par. 7 ) ,  they point 
to the conclusion that denial to Appellee o f  the right 
to vote in a Democratic prim ary, for the reason that 
he is a N egro, is a violation o f the Fifteenth Amendment, 
because it is a denial o f the right to vote in the only 
elections that count for anything in the State. I f , Ap­
pellee contends, the Democratic Party is, for all practical 
purposes, the only party in the State, and he is denied 
the right to vote in its primaries, because he is a Negro, 
he is denied the right guaranteed to him  by  the Fifteenth 
Am endm ent.

THE CROSS-APPEAL

T h e  statement in the brief o f A ppellants and Cross- 
Appellees (p p . 2, 3 )  o f the grounds o f the cross-appeal 
is not fu ll enough and is partially incorrect.

T h e  opposing brief (p . 2 )  states on ly  paragraphs 
2 and 4 o f the concise statement o f points relied on in 
the cross-appeal. Paragraphs 1 and 3 o f that statement 
(R ., p. 8 4 )  are as fo llo w s:

“ 1. T h e  action was for denying the plaintiff 
the right to vote at a prim ary election for the 
nom ination o f Democratic candidates for United 
States Senator. Representatives in the House of

2



Representatives o f  Congress, and various State 
offices.”

” 3. T h e  prim ary at which plaintiff was denied 
the right to vote was a prim ary for the nom in a­
tion also o f  candidates for State offices, and p la in ­
tiff’ s right to vote under the Fifteenth A m en dm en t  
to the C on stitu tion  o f the U nited  States includes 
the right to vote for candidates for nom ination  
to such offices as well as for candidates for con­
gressional offices.”

T h e statement on page 3 o f  the opposing brief, 
that ‘ ‘there was no lim itation in the conclusions o f  law  
or in the ju d gm en t” , is incorrect, because it is a m iscon­
struction o f the C o u rt’ s Conclusions o f  L aw .

T h e quoted statement fo llo w s a quotation from  
the District C o u rt’s opinion (R ., p. 4 2 )  that since 
candidates for U nited  States Senator and Representatives 
were nominated at the prim ary, “ it is unnecessary to 
pass on the question o f whether or not this action w ould  
lie had the prim ary been one merely for the nom ination  
of State or local officers.”

Paragraph 2 o f  the C o u rt’ s C onclusions o f L aw  
(R ., p. 7 2 )  is as fo llo w s :

“ T h e  holding o f the Dem ocratic Prim ary elec­
tion in M uscogee C o u n ty  and the State o f  Georgia 
on July 4 , 1 9 4 4 , for the nom ination o f a candidate 
for U nited States Senator and members o f  the House  
of Representatives, to be voted on in the general 
election, o f  said year, was by law  an integral part 
of the electoral process o f the state o f  G eorgia.”  
Paragraphs 3 to 5 , inclusive, o f  the C o u rt’ s C o n ­

clusions o f L a w  ( R . ,  p. 7 3 )  refer to the primary as “ said 
primary.”

T he contentions o f  the C ross-A p p ellan t are as fo l-

3



low s:
1. W h ile  the C ourt gave him  all the monetary 

damages he asked for, he was entitled to damages for 
denial o f his right to vote at an election for Federal 
and State officers, and the vindication o f his right was 
not less im portant than the com pensation to be awarded 
for its violation.

2. T h e  Court limited his right to vote to the right 
to vote in elections for members o f Congress by  a judg­
ment excluding, at least by im plication, his right to vote 
in elections for State officers, awarding damages only for 
part of the w rong he suffered.

3. Such exclusion limits his right to vote, guaran­
teed by the Fifteenth A m endm ent and the statute (8 
U .S .C .A . § §  3 1 , 4 3 ) ,  which is the right to vote at all 
elections, for State and Federal officers.

B R IE F  O F  T H E  A R G U M E N T

THE M AIN APPEAL

1. T he Question and Its Setting

T h e  question is whether, when a political party 
determines to hold, and does hold , a prim ary for the 
election o f public officers, State and N ation al, such pri­
mary is State action.

T h e  answer is, as Appellants concede (p . 10 o f their 
b rief), that it is State action w hen the prim ary, by law 
or in fact, is an integral part o f  the electoral process of 
the State.

T h a t must be the answer in the light o f  the two 
most recent decisions o f  the Supreme C ou rt o f the United 
States, which hold that a primary held under legal sanc­
tions is an integral part o f the electoral process.

U . S v . C lassic, 3 1 3  U . S. 2 9 9 , 85  L . ed. 1368,

4



61 S u p . C t .  1 0 3 1 ,
S m ith  v . A l lw r i g h t ,  3 2 1  U . S. 6 4 9 , 8 8  L . ed. 

9 8 7 , 6 4  S a p . C t .  7 5 7 , 151 A .L .R .  1 1 1 0 ,
T h e Georgia prim ary is, both  b y  law  and in fact, 

an integral part o f the electoral process o f the State. 
It is said by  A ppellants not to be, m ainly because the 
Georgia law does not require primaries to be held, as 
do the law o f Louisiana, construed in U . S. V. C lassic, 
and the law o f T e x a s , construed in S m ith  V. A llw r ig h t .

A nd that is the single point o f difference between 
Appellants and Appellee, except that Appellants make 
the subsidiary contentions (p . 14 o f their brief) that 
the Georgia law , differing from  the T ex a s statutes in ­
volved in A llw r i g h t ,  does not create, nor require to be 
created, party executive committees and does not require 
party conventions to be held; that political parties in 
Georgia pay the expense o f primaries; and that candi­
dates in general elections in Georgia need not have been 
nominated in primaries. T hese subsidiary contentions 
are inaccurate in fact and immaterial in law , as w ill ap­
pear later herein, and moreover merge in the main o b ­
jection that primaries in Georgia are not required by  
law.

T he contention that a prim ary can never be State 
action unless it is required by law  to be held is like 
saying that the relationship o f agency cannot exist unless 
the agent is agent under com pu lsion ; for while the per­
sons through w h om  a State acts m ay not be technically 
agents, yet the relationship between the State and its 
duly authorized representatives is m uch like that between 
a private principal and his agent. T h e  sim ilarity is 
marked enough to illustrate the illogic o f  the position  
of Appellants that party authorities holding a primary  
election are not representatives o f the State unless the

5



primary is held in pursuance o f the positive command 
o f State law.

A  primary can be just as m uch State action when 
not required by law as when it is. I f  w hen it is held, it 
is required by law to be held in a certain w ay only, it 
becomes an integral part o f  the State's la w fu l electoral 
process. If  every detail is prescribed and regulated by 
positive law , it can make no difference whether initially 
the primary was required or not. A d d  to that the fact 
that in a given State primaries are alw ays held, and it 
becomes apparent that they are a part o f the election 
machinery o f that State. A d d  to all that the further 
fact that primaries o f a particular party in that State in­
variably control the result in the fo llo w in g  general elec­
tion, and the conclusion is inescapable that the primary 
is that State’ s electoral process. In no such case can a 
primary be the voluntary private affair that Appellants 
contend it is. It is either part or the w hole o f the State’s 
electoral machinery, so that a voter excluded from  it 
on account o f his color is denied the right to vote guaran­
teed to him by the C onstitution  and the laws. Such 
an election is certainly comprehended w ithin the phrase, 
“ any election’ ’ , used in the A ct o f  Congress (8  U . S. 
C. A. § 31 ) .

2. T he Precedents Generally

Reserving until later an analysis and application 
o f the Supreme C ou rt decisions, it can be said with 
confidence that the weight o f other authority supports 
the proposition that primaries recogn ized  by  law are 
an integral part o f a State’ s election machinery.

Such authority is not w anting in Georgia. Thus 
the Georgia C ourt o f Appeals defines “ prim ary election’ 
as fo llo w s:

“ T h e  words primary election’ have a definite

6



legal meaning- T h e  w ords themselves denote an 
election by ballot, held by some party, organization, 
or association, for the nom ination o f candidates 
for public offices/’

N o r to n  v . T h e  S ta te, 5 G a . A p p .  5 8 6 ( 3 ) .  
T h e C ou rt in that case, on an indictment for false 

swearing, was construing the provision o f the Georgia  
primary law . requiring prim ary election managers to 
take an oath (C od e o f 1 9 3 3  and A n n . C ode, § 3 4 - 3 2 0 1 ;  
Appellants’ brief, pp . 1 0 1 , 1 0 2 ) ,  and necessarily recog­
nized the prim ary as part o f  the machinery for the elec­
tion o f public officers.

Such recognition is accorded generally. T h e  nature 
and purpose o f primaries as thus recognized by  the 
authorities are sum m ed up in C orpus Juris Secundum in 
these w ords:

“ T h e  purpose o f a prim ary law  is to allow  the 
voters to choose their candidates, and to  p u t  their  
rights in so  d o in g  u nd er th e p ro tec tio n  o f  th e la w .”  
(Em phasis ours.)

29  C . J. S. 1 4 6 , § 1 1 1 .
In a remarkable opinion in a case decided more 

than a third o f a century before C lassic  and A llw r ig h t  
(1 9 0 6 ) , the Supreme C ou rt o f  Illinois, in alm ost the 
very words used in those cases, described primaries “ as 
an integral part o f the process o f choosing public o f ­
ficers” . T h e  question was whether a prim ary under 
the law o f Illinois was w ithin a provision o f the Illinois 
Constitution that “ all elections”  shall be free and equal, 
the Constitution having been adopted, as the C ou rt said, 
before primaries had been made “ part o f  the election 
system or subject to regulation by law ” . In ruling  
that primaries were w ithin the phrase in the C on stitu ­
tion, the C ou rt said:

7



“ It seems clear that the elections protected by the 

C onstitution are all such elections as are held under 

a u th o rity  o f  la w , at which qualified electors may 

vote; and when statutes are enacted which regulate 

the form  o f the ballot to be used, w hat shall ap­

pear upon the ballot, and h o w  the candidates whose 

names shall so appear shall be chosen, the provision 

o f the Bill o f Rights applies to the new condition. 

T h e  right to  ch oose candidates fo r  p u b lic  offices 

w h o se  nam es w ill be placed o n  th e o ffic ia l ballot 

is as valuable as the righ t to  v o te  fo r  th em  aftet 

th e y  are ch osen , and is o f  precisely th e sam e nature. 

T h ere  is scarcely a p o ssib ility  th at a n y  p erson  will 

or can be elected to  o ffice  u nder this s y s te m  unless 

he shall be chosen  at a p rim a ry  election , and this 

sta tu te, w h ich  p ro v id es  th e m e th o d s  b y  w h ich  that 
shall be d on e and prescribes and lim its the rights of 
voters  and o f  parties, m u st b e  regarded as an in­

tegral part o f  the process o f  ch o o sin g  p u b lic  of­

ficers, and as an election  la w . It is undoubtedly 
true, as urged by counsel for defendants, that it 
has become not only proper, but necessary, to pro­
vide additional safeguards and protection to the 
voters at primary elections, to the end that their 
w ill may be fu lly  expressed and fa ith fu lly  and 
honestly carried out, and any law  having that ob­
ject in view w ould  naturally com m end itself to the 
law -m aking power- T h e  legitimate purpose of 
such a law , however, m ust be to sustain and enforce 
the provisions o f the C onstitution  and the rights 
o f voters, and not to curtail or subvert them or in­
juriously restrict such rights.”  (E m phasis ours.)

8



B re ck o n  v . B o a rd , 2 2 1  III. 9 , 77  N .E .  3 2 1 , 5 
A n n . C a s. 5 6 2 .
T h is  case has been consistently fo llow ed  in the 

later decisions. T h u s  the C ou rt said in another case: 
“ Section 18 o f the bill o f rights provides that 

all elections shall be free and equal. T h is  language 
has been construed by  this C ou rt as m eaning that 
the vote o f every qualified elector shall be equal in 
its influence w ith  every other one . . .  It is well settled 
in this State that the term ‘election’ applies to a 
primary for the nom ination o f candidates as well 
as to the election o f such candidates to office, and 
the right to choose candidates for public offices, 
whose names are to be placed on the official ballot, 
has been held as valuable as the right to vote for  
them after they are chosen and is o f  precisely the 
same nature.”

P eo p le  v . F o x  (I I I .)  1 28  N .E .  5 0 5 , 5 0 7 .
A n d  in a still later decision the same C ou rt said: 

“ A  provision o f a prim ary election law  which  
confers the right to vote upon a person w h o moves 
into an election precinct a specified time before the 
election, but w ithholds it from  residents o f the prer 
cinct w h o at the time fixed possess all the constitu­
tional qualifications o f legal voters, but were not 
registered at the last general registration day, v io T 
lates the constitutional provision that all elections 
shall be free and equal ”

P eo p le  v . S tcassh eim , 2 4 0  III. 2 7 9 , 8 8  N .E .  8 2 1 ,  
2 2  L .R .A .  ( N .S .)  1 1 3 5 .

So the Supreme C ou rt o f C alifornia has held that 
a primary election is an election authorized by law  w ithin  
the meaning o f a constitutional provision that all persons 
possessing certain qualifications can vote at any election

9



authorized by law.
Spier v . Baker , 1 2 0  C a l. 3 7 0 , 41 L .R .A .  196, 

5 2  Pac. 6 5 9 .
It has been held also in N orth  D ak ota  that a pri­

m ary is an “ election”  w ithin a constitutional provision 
prescribing the qualifications o f  voters at “ any election.” 

J o h n so n  v . G reen  F o rk s  C o u n t y ,  16 N - D .  353, 
113 N . W .  1 0 7 1 .

In Pennsylvania it has been held that a “ nominat­
ing election”  is w ithin a constitutional provision author­
izing punishment o f frauds under “ any election law.” 

L eon a rd  v . C o m m o n w e a lth ,  1 1 2  Pa. 6 2 2 , 4 Atl. 
220.

T h e  Indiana C ourt, too, has held:
“ T h e  words ‘any election' clearly include pri­

mary election and such elections come w ithin the 
letter o f the statute, which made it a crime to sell 
liquor ‘on the day o f any election’ . ”

State v . H irsch , 125  In d . 2 0 7 , 9 L .R .A .  170, 
2 4  N . E . 1 0 6 2 .

A n d  where a city charter provided that bonds need 
be authorized only by a m ajority vote if submitted at 
a “ general”  election, but by 6 0  per cent o f the voters 
if submitted at a “special”  election, it was held by the 
Nebraska C ourt that submission at a State-w ide primary, 
the date for which was fixed by law , was submission 
at a “ general”  election w ithin the m eaning o f the charter. 

State v . M a rsh , 1 0 7  N eb - 6 0 7 , 1 87  N . W .  88. 
These authorities mean that primaries, recognized 

and regulated by law , whether or not required, are 
elections and are therefore an integral part o f  the elec­
toral process. A  primary election, not required by law 
but, w'hen held, recognized as part o f the election machin­
ery and held under the strictest and m ost comprehensive

10



legal sanctions, is necessarily, as the Illinois C ou rt de­
scribes it, “ o f  precisely the same nature as other elec­
tions” . T o  hold  otherwise w ou ld  put the m ost im ­
portant governm ental function, nam ely, the election o f  
public officers, at the mercy o f irresponsible voluntary  
groups or organizations entirely w ith ou t legal account­
ability.

3. T he G eorgia L aws

T h e Georgia prim ary is o f  “ precisely the same 
nature”  as the Georgia general election. Primaries in 
Georgia, as appellants say, are not required by  law  to be 
held. But, when held, they m ust be held under laws 
regulating every step in them in the m ost meticulous 
detail. It is literally true, as Judge D avis said in his 
opinion in this case (R ., p. 7 0 )  :

“ Once a decision to hold a prim ary is made, the 
statutes o f  Georgia take hold  and direct every es­
sential step from  registration and qualification o f  
voters to the placing o f the names o f the nominees 
on the general election b a llo t.”
A  glance at the Georgia laws w ill demonstrate the 

truth o f Judge D av is ’ assertion. N o t  only  is there a 
chapter o f the C ode dealing w ith  primaries; all the elec­
tion laws are shot through w ith provisions specifically 
regulating prim ary elections. A  look at them , as they 
come, will show  h o w  com pletely the prim ary is an in ­
tegral part o f the electoral process provided for by the 
laws o f Georgia.

T h u s the C on stitu tion  o f the State, effective at the 
time of the prim ary here in question, itself contained an 
important regulation. A rt. 2 , sec. 1, par- 8, o f the 
instrument, an am endm ent, adopted in 1 9 0 8 , provided  
that no person could participate in a primary unless he 
was a qualified voter, meaning that he m ust be qualified

11



to vote under the general election law s.
C o d e  o f  1 93 3  and A n n . C o d e ,  § 2 - 6 0 8 ;  A p p el­

lants' b rief, p . 85 .
Under a constitutional provision requiring the 

General Assem bly to forbid the sale, distribution or fur­
nishing o f intoxicating drinks w ithin tw o  miles o f pre­
cincts “ on days o f election" (C od e o f 1 9 3 3  and Ann. 
Code, § 2 -1 0 0 1 ;  A ppellants’ brief, p. 8 5 ) ,  a statute 
was enacted so long ago as 1 8 8 7 , am ending a statute 
relating only to general elections, w hich made it crimi­
nal for any person so to furnish intoxicating liquors 
“ on days o f election, either state, county or municipal 
or primary elections."

C o d e  o f  1 93 3  and A n n . C o d e ,  § 5 8 - 6 0 9 ;  A p ­

pellants’ b rief, p . 8 5 .
T h is  statute defines “ prim ary elections" as meaning 

elections by ballot for the nom ination o f candidates to 
run at subsequent elections for State, county or municipal 
offices.

C o d e  o f  1 93 3  and A n n . C o d e ,  § 5 8 - 6 1 0 ;  A p ­

pellants’ b rief, p . 8 5 .
It is curious that the C on stitu tion  o f the State 

should prescribe the qualifications for voters in primaries, 
if the primary is no part o f the electoral process. And 
it is significant that, in the early days o f the primary, 
the legislature was so solicitous for the purity o f primary 
elections that it prohibited the use o f intoxicating liquors 
within a radius o f tw o miles o f election precincts. These 
provisions are hardly com patible w ith  the casualness 
that Appellants attach to primaries.

But Georgia’ s election laws proper are contained 
within T itle  3 4  o f the Code. Part I o f  this T itle , em­
bracing Chapters 3 4 -1  to 3 4 -1 1 , inclusive, deals with 
the qualification and registration o f voters. These pro-

12



visions relate to all voters in all elections. Som e of them, 
noted below , refer specifically to primaries; and, as we 
have just seen, the C on stitu tion  makes all o f  them ap­
plicable to voters in primaries.

There is a voters’ book , kept by the county tax  
collector in which all voters are required to register.

“T h e  T a x  Collectors o f  the several counties are 
required to keep a b ook  to be called the permanent 
qualification or voters’ b ook , upon w hich all per­
sons desiring to qu alify  as electors shall be required 
to qu alify  as required by  the C on stitu tion  and laws 
of this State. Said b ook  shall contain on the first 
page thereof, or near the first page, the oath required 
to qu alify  an elector.”

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 -1 0 1 .
T h e form  o f oath is prescribed ( §  3 4 - 1 0 3 ) .  T h e  

method o f registering, time o f opening and closing the 
books, and manner o f administering the oath, are pro­
vided for in detail ( § §  3 4 -1 0 4  to 3 4 - 1 1 5 ) .

Incidentally, but perhaps pertinently to the issue 
in this case, some o f these provisions require that the 
race o f the registrant m ust be noted on the registration 
records. T h u s  one section requires that “ for the pur­
pose of more easily identifying voters” , the officer in 
charge o f the voters’ book  shall note the race o f the per­
son signing, “ that is to say, whether white or colored.”

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 - 1 1 1 ;  A p ­

p ella n ts’ b rief, p p .  8 5 , 8 6 .

A nother, w hich provides that the tax collector 
shall file w ith the county registrars an accurate copy  
of the registration list made up from  the voters’ book, 
specifically requires that this list shall show  the race o f  
each voter.

13



C o d e  o f  1 93 3  and A n n . C o d e , § 3 4 - 2 0 2 ;  A p ­

pellan ts' b rief, p . 8 6 .
A n d  tw o others provide that the list o f  disqualified 

persons, made up by the clerk o f the superior court and 
the ordinary o f the county, and the tax collector, and 
the list o f qualified voters made up by  the county reg­
istrars, shall also show  the race o f each person listed.

C o d e  o f  1 9 3 3  and A n n . C o d e , § §  3 4 -2 0 3 ,  34- 
4 0 1 ;  A p p e lla n ts ' b rief, p p . 8 6 , 8 7 .

W h y ?  O f  course voters m ust be identified as reg­
istered voters. B ut is it necessary to identify them as 
w h ite  or black  voters, if not for the purpose o f facilitat­
ing the holding o f a w h ite  prim ary? A n d  if so, is not 
this a definite, if indirect, sanction o f the white primary 
by the law itself? It is difficult to see h o w  it can be 
anything else; in which event, the law  itself, as it applies 
to primaries, is a violation o f the Fifteenth Am endm ent, 
because it recognizes and makes easier the holding of a 
white primary. T h e  institution o f the white primary 
is given thus a legal status.

It w ill be noted from  § §  3 4 -2 0 2  and 3 4 -2 0 3 ,  cited 
ante, that the registration lists and the lists o f disqualified 
persons, made up by the county officers therein named, 
are delivered to the county registrars, w h o are public of­
ficers, charged by law w ith definite duties relating to all 
elections, including specifically primary elections. These 
officers are appointed by the judge o f the superior court 
o f their county under a statute as fo llo w s:

“ T h e  judge o f the superior court o f each county 
shall appoint biennially three upright and intelli­
gent citizens o f  said county as county registrars, 
and have the appointm ent entered on the minutes 
o f the court. Said appointm ent shall be for a term 
o f tw o years and until their successors are appointed

14



and qualified. T h e  said judge shall have the right, 
however, to remove said registrars at any time in his 
discretion, w ith  or w ith ou t cause, and at once ap­
point their successors."

C o d e  o f  1 9 3 3  and A n n . C o d e , § 3 4 -3 0 1 .
T h is  board o f registrars m ust be bi-partisan ; that is, 

as the statute puts is, not all o f them m ust be appointed  
from "o n e  political party or interest."

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 - 3 0 2 ;  A p ­

p ella n ts’ b rief, p . 8 6 .

A n d  each o f  them takes this o a th : “ I do solem nly  
swear that I w ill fa ith fu lly  and im partially discharge, to 
the best o f m y  ability, the duties im posed upon me by  
law as county registrar."

C o d e  o f  1 9 3 3  and A n n . C o d e , § 3 4 -3 0 3 .

It is the du ty o f  the registrars to purge the lists fu r­
nished to them and to perfect a list o f qualified voters.

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § §  3 4 -4 0 1  to  3 4 -  
4 0 3 ;  A p p e lla n ts ’  b rief, p . 8 7 .

T h e  list so perfected is filed by the registrars w ith  
the clerk o f the superior court and becomes the list o f  
voters qualified to vote at primaries, the law  providing  
that no person can vote "a t  said general election (in  the 
year in which the list is made u p ) or at a n y  p a r ty  p r i­

mary to  n o m in a te  candidates fo r  th e o ffices  to  be filled  
at said general election ”  unless his name is on that list.

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 - 4 0 4 ;  A p ­

p ella n ts’ b rief, p p . 8 7 , 8 8 .

T h e  next section provides that each person whose 
name is on this registration list shall be entitled to vote 
at the general state election and the Federal election o f that 
year and at all prim aries, m entioning primaries five times 
in the 1 7 lines o f  the section.

15



C o d e  o f  1 93 3  and A n n . C o d e , § 3 4 - 4 0 5 ;  A p ­

pella n ts' b rief, p . 88 .

T h e  section next in order provides for a supple­
mental registration list to be made up by the registrars, 
upon which any person m ay have his name placed if he 
wants to vote at any election or p rim a ry  held subsequent 
to the general election.

C o d e  o f  1 933  and A n n . C o d e ,  § 3 4 - 4 0 6 ;  A p ­

pellants’  b rief, p p . 8 8 -8 9 .
A n  A ct o f 1 9 4 3 , further linking up the primaries 

w ith the general election laws, requires the clerk o f the 
superior court, by July 1 o f each year “ in w hich there 
is held a general State election, and prim aries to  n om inate  
candidates”  therefor, to file w ith the Secretary o f State 
a certificate show ing the total num ber o f registered voters 
in his county.

G a. A n n . C o d e  S u p p ., § 3 4 -4 0 6 ,  A c ts  1943 , 
p. 3 5 3 ;  A p p e lla n ts ' b rief, p p . 8 9 , 9 0 .

It is made the duty o f the registrars to prepare an 
additional registration list for any special election that 
m ay be called, “ and if a primary is held for said special 
election, it shall be the duty o f the registrars to furnish 
said lists to the managers o f said prim ary for use in said 
primary and n o  on e shall be en titled  to  v o te  in either 
said special election or in said p r im a ry , unless his name 
is upon one o f the lists furnished by  the registrars.”

C o d e  o f  1 93 3  and A n n . C o d e , § 3 4 - 4 0 7 ;  A p ­

pellants’  b rief, p p . 9 0 , 9 1 .
B y  an A ct o f 1 9 4 3 , no one is entitled to vote in 

a n y p rim a ry election  unless his name is on the registration 
list certified by the registrars 10 days before the primary 
or unless he presents a certificate from  the registrars that 
his name was om itted from  the list through error.

16



G a . A n n . C o d e  S u p p ., § 3 4 -4 0 9 ,  A c ts  1 9 4 3 , p.
3 5 3 ;  this b rie f, p . 6 4 .

It is made the du ty o f the registrars to be at the 
county courthouse during voting  hours o f each p rim a ry  
and general election day to consider the qualifications o f  
voters whose name m ay have been om itted from  the 
registration lists by  mistake.

G a . A n n . C o d e  S u p p .,  § 3 4 -4 1 1 ,  A c ts  1 9 4 3 . p.
3 5 3 ;  A p p e lla n ts ’  b rief, p . 9 1 .

T h e  Dem ocratic prim ary o f Ju ly  4 , 1 9 4 4 , was 
actually held for the nom ination o f a U nited States 
Senator, Representatives in Congress and State and coun­
ty officers (R .,  p. 1 5 ) ,  and the candidates nom inated  
therein were elected in the general election o f the fo llo w ­
ing N ovem ber (R ., p. 1 7 ) .  A ll  the machinery pro­
vided by the law  o f Georgia for registration and quali­
fication o f voters was used in that prim ary election and 
the preliminary preparation for it. T h is  included the 
statutes above cited and the m any others in Chapters 
34-1 to 3 4 -1 1  not cited, because under the section o f the 
State Constitution ( §  2 -6 0 8 )  no one can vote in a pri­
mary unless he is qualified under all o f  them.

A n d  yet it is said by  A ppellants that an election so 
held, w ith such a result, is not an integral part o f  the 
electoral process, for the sole reason that the Democratic 
Party was not compelled by law to hold it. T h e  es­
sential facts are that the election was held and that not 
a single voter could have participated in it w ith out com ­
pliance w ith these laws, both by him self and by  the 
party authorities. Lack o f  the legal requirement that 
a primary be held becomes irrelevant, once the decision 
to hold it is made, because such decision makes the en- 
sumg primary in all respects a creature and an instrument 
of the law.

17



B ut the law respecting the qualifications and reg­
istration o f voters for primaries is not a ll; in fact, it is 
only the beginning. T h e  statutes control as w ell every­
thing that comes after registration, putting mandatory 
duties on the party authorities in matters respecting the 
holding o f the elections and subsequent procedures. The 
completeness o f this control appears from  examination 
o f the statutes, which we now  resume.

A n  A ct o f the General A ssem bly permits the use 
o f voting machines in counties w ith certain population  
limits, specifically extending the permission to primaries.

A c ts  1 9 3 7 -3 8 , E x . Sess.,  p . 3 7 1 , this b rief, p . 64.
A  recent statute creating a general election in 

A ugust, in addition to the regular general election in 
Novem ber, specifically provides that vacancies in n om i­

n ations  for public office m ay be filled at the A u g u st gen­
eral election. A  general election itself can thus be turned 
into a prim ary; in fact, the tw o  can be held together.

G a . A n n . C o d e  S a p p ., § 3 4 -1 3 0 5 ,  A c ts  1 9 4 3 , p. 
5 3 5 ; A p p e lla n ts ’  b rief, p . 9 1 .

Georgia has an Australian B allot L a w , codified as 
Chapter 3 4 -1 9  o f the Code, which is optional w ith  the 
counties. T h is  law had been adopted and was o f  force 
in M uscogee C ou n ty  on Ju ly  4 , 1 9 4 4 , w hen the primary 
here involved was held (R .. p. 2 7 ) .

It is specifically applicable to primaries. It im­
poses on the ordinary o f the county, a public officer, the 
duty o f m aking arrangements for the voting  booths, 
even for a primary, at th e p u b lic  exp en se.

C o d e  o f  1 9 3 3  and A n n . C o d e , § 3 4 -1 9 0 2 ,  A p ­

pella n ts’ b rief, p p . 9 1 , 9 2 .
T h e  ordinary has other duties to perform  under 

this statute in primary elections. He m ust prepare in­
struction cards for voters, which are delivered to the

1 8



county sheriff to be placed by  him  in the voting booths.
C o d e  o f  1 9 3 3  and A n n . C o d e , § 3 4 -1 9 0 8 .

It is the ordinary’ s du ty to preserve the election 
paraphernalia for use in subsequent elections, general and 
primary.

C o d e  o f  1 9 3 3  and A n n . C o d e , § 3 4 -1 9 1 2 ,  A p ­
p ella n ts’  b rief, p p . 9 6 , 9 7 .

A n d  for his services in each election, including pri­
maries, the ordinary is paid a fee “ o u t  o f  th e c o u n ty  
treasury” .

C o d e  o f  1 9 3 3  and A n n . C o d e , § 3 4 -1 9 1 1 ,  A p ­

p ella n ts’  b rief, p. 9 6 .
It is made the du ty o f party executive committees 

or other party authorities to furnish “ official”  ballots 
for primaries held under this law , the ballots to be com ­
posed and arranged according to a form  prescribed in 
detail by the statute. A n d  the same section requires 
that candidates in such primaries shall qu alify  3 0  days 
before the prim ary and that “ the committee or other 
party authority shall n o t  fix any other or different time 
limit for qualification.”

C o d e  o f  1 9 3 3  and A n n . C o d e , § 3 4 -1 9 0 3 ,  A p ­

p ella n ts’ b rief p p . 9 2 , 9 3 .
T h e  next section provides for the arrangement on  

the official ballot o f  the names o f candidates o f political 
parties; and, in the case o f  candidates for national and 
State offices, requires that the authorities o f  the party  
nominating them shall file notice o f their candidacy w ith  
the Secretary o f State 3 0  days prior to the general election, 
except where a second prim ary has been fou n d necessary.

C o d e  o f  1 9 3 3  and A n n . C o d e  and S u p p .,  § 3 4 -  
1 9 0 4 , A p p e lla n ts ’  b rief, p p . 9 4 , 9 5 .

T h e  party authorities furnishing the official ballot 
to managers at primaries held under this law  shall fu r -

19



nisb 25  per cent more ballots at each p olling place than 
there are voters registered to vote there, and shall furnish 
the requisite other election supplies; and it is made un­
law fu l for party authorities to deliver ballots to any one 
except election managers and for the managers to deliver 
a ballot to any one except a qualified voter applying for 
one.

C o d e  o f  1 93 3  and A n n . C o d e ,  § 3 4 -1 9 0 6 ,  A p ­

pellants’ b rief, p p . 9 5 , 9 6 .
A n d , apparently to safeguard the purity o f such 

primaries, it is made un law ful for any printer, or any 
one else concerned w ith the preparation o f the ballots, 
to deliver them to any person except the party authorities 
holding the primary.

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § §  3 4 -1 9 0 7 ,  this 
b rief, p . 6 4 .

Several things are to be specially noted in connec­
tion w ith this Australian B allot L a w . It lays down 
detailed rules for the conduct o f elections held under it, 
all o f which are applicable to primaries. It contains 
exceptions to the rule stated by  Appellants (p . 14 of 
their b rie f), that primary expenses are borne by  the 
party; the expense o f providing the booths is defrayed 
by the governm ent ( §  3 4 -1 9 0 2 ,  a n te ) ,  and the ordi­
nary’ s fee comes out o f the county treasury ( §  3 4 -1 9 1 1 . 
a n te ) . It imposes duties in con n ectio n  w ith  primaries, 
on State and county officers: T h e  ordinary ( § §  3 4 -1 9 0 2 ,  
3 4 -1 9 0 8 , 3 4 -1 9 1 2 ,  a n t e ) ;  the sheriff ( §  3 4 -1 9 0 8 ,  
a n t e ) ; and the Secretary o f State ( §  3 4 -1 9 0 4 ,  a n te ).

A n d  it disproves this statement on p. 3 7  o f Ap- 
pellants' brief: " I n  Georgia no duties are im posed upon 
the party by State statutes. N o  duties are laid upon it 
by statute. N o  duties are required o f it by statute.” 
T h is  statute does require party authorities to fo llo w  it

20



in counties in w hich it has been adopted, w hen the party  
holds a prim ary. In  such cases, the executive committee 
shall provide ballots in a prescribed form , and it shall 
not fix any time for qualification o f  candidates different 
from that prescribed by  law  ( §  3 4 -1 9 0 3 ,  a n te ) .  It 
shall furnish 2 5  per cent more ballots than w ill ap­
parently be needed, shall furnish other election supplies, 
and its managers shall deliver ballots on ly  to prescribed 
persons ( §  3 4 -1 9 0 6 ,  a n te ) .

A ll the directions o f  the statute are m andatory. 
As to this particular prim ary, the authorities o f  the 
Democratic Party in M uscogee C o u n ty  had no discretion, 
except to decide to hold  the prim ary; and when they 
made that decision, as they did, the law  stepped in and 
com m anded  them to do thus and so, and they could  
not do otherwise. T h is  prim ary, held under this law , 
was as m uch an integral part o f  the electoral process as 
the law o f Georgia could make it.

T w o  A cts o f  1 94 1  add cum ulative optional pro­
visions to the Australian B allot L aw .

G a. A n n , C o d e  S u p p .,  § §  3 4 -1 9 1 4  to  3 4 -1 9 2 1 ,  
A c ts  1 9 4 1 , p p .  3 2 4 , 4 2 9 ;  A p p ella n ts '’ b rief, 
p p . 9 7 -1 0 0 .

It does not appear from  the Record whether these 
later Acts have been adopted in M uscogee C o u n ty . B u t  
whether they have or not, they illustrate h o w  com pletely  
the State has assumed control o f primaries; for, when  
adopted and when a party decides to hold a prim ary in 
a county in which they are effective, they are absolutely  
mandatory and leave as little discretion to the party  
authorities as is left to them by  the original law .

T h e  statutes exam ined so far are not in the Chapter 
of the T itle  o f the Georgia C ode dealing w ith primaries 
in particular, being codified in Chapters relating to elec­

21



tions in general. From  that fact alone, aside from  the 
importance o f the statutes themselves, it is inferable that 
the primary is an essential and indispensable part o f the 
Georgia electoral process. T h is  inference ripens into an 
incontrovertible conclusion when the prim ary laws 
proper are considered.

Particularly im portant, first, is a special statute, 
operative only in M uscogee C o u n ty , respecting the se­
lection o f the county executive committee w hose mem­
bers as such are the Appellants herein.

A c ts  1 9 2 5 , p. 7 2 1 , A p p e lla n ts ’ b r ie f, p . 4 7 , this 
b rief, p . 77 .

In their comparison o f the Georgia law s w ith the 
T exas laws, for the purpose o f distinguishing this case 
from  S m ith  V. A llw r ig h t ,  A pp ellants’ counsel set great 
store by the fact that the T ex a s law  makes provision for 
the creation and selection o f party executive committees, 
while, they contend (p . 14 o f their b r ie f) , the Georgia 
law does not, though they recognize the A c t o f  1925 
in their A ppen dix A  (p . 4 7  o f  their b r ie f) .

I f  such comparison could have validity in any case, 
it falls dow n in the light o f  the A ct o f  1 9 2 5 ; for that 
A ct requires that the chairman o f the executive commit­
tee o f every political party in M uscogee C o u n ty  be elected 
by direct popular vote in primaries held in the county for 
the nom ination o f county officers and that the chairman 
thus elected appoint the other members o f the com­
mittee.

Appellants held their places as chairman and mem­
bers o f the Democratic Executive Com m ittee o f  Muscogee 
C ou nty by virtue o f this very statute (R ., p. 15 , par. 2 ). 
T h e y  were not only officers o f their p a rty ; they were 
also officers o f the State o f Georgia. Every act o f  theirs 
in relation to this prim ary, including the denial to Ap-

22



peilee o f the right to vote in it, was an official act, which  
they could not have perform ed at all except for this 
statute. I f  there were nothing else in the case, Appellants  
would be direct representatives o f  the State by  specific 
authority o f the statute. In a peculiar sense, on account 
of this statute, the prim ary o f Ju ly  4 , 1 9 4 4 , was an 
integral part o f  the electoral process in M uscogee C o u n ty .

But whatever m ay be the effect o f  this special A ct  
of 1 92 5 , the general prim ary statutes themselves com ­
pletely control primaries and make them in law  and in 
fact an integral part o f  the State’ s electoral process. These  
statutes are embraced in Chapter 3 4 -3 2  o f the C ode o f  
1933. A n d  the grow ing importance o f primaries in the 
law of Georgia is illustrated by  the fact that the Supple­
ment to Chapter 3 4 -3 2  in the A nn otated Code, covering 
the period from  1 9 3 3  to 1 9 4 3 , contains exactly as m any  
sections as the original Chapter in the C ode o f 1 9 3 3 .

T h e  first section o f the Chapter provides that pri­
maries shall be held in the manner and form  prescribed 
by the rules o f  the party holding it.

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 -3 2 0 1 ,  A p ­

p ella n ts' b r ie f, p p . 1 0 1 , 102 .
Standing alone, this m ight lend color to A ppellants’ 

argument that the Dem ocratic party is a purely voluntary  
organization, governed by  its ow n  rules, which it has 
plenary power to make. B u t the section is severely 
circumscribed and limited by another, which provides 
that the party authorities shall form ulate rules and regu­
lations for the holding o f primaries and m aking returns 
thereof “ in all m a tters n o t  p ro v id e d  fo r  in this C h a p ter  

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 -3 2 0 9 ,  A p ­

p ella n ts' b rief, p . 1 04 .
A n d  it w ill be fou n d  that the Chapter itself pro­

vides for practically everything. In fact an inspection

23



o f the Rules o f the State Democratic Executive C om m it­
tee, under which the primary o f Ju ly  4 , 1 9 4 4 , was held 
(R ., pp. 2 8 - 4 0 ) ,  w ill disclose that virtually  every rule 
is based on, or is a restatement of, a positive provision 
o f law.

Besides, § 3 4 -3 2 0 9  is itself a co m m a n d  to the party 
to make rules. T h e  party authorities, it says, shall 
form ulate rules for holding primaries. T h e  section 
makes the party rules the law  o f the State, and if there 
were nothing else in the primary law s w ou ld  alone 
constitute a party holding a prim ary the agent and repre­
sentative o f the State. T h e  action o f a party holding a 
primary under rules form ulated and adopted in pur­
suance o f § §  3 4 -3 2 0 1  and 3 4 -3 2 0 9  cannot be anything 
except State action.

But § 3 4 -3 2 0 1  contains more than a reference 
to rules. It provides also that prim ary elections shall 
be held by managers selected in the manner prescribed 
by the rules. A n d  each manager is required to take an 
oath before entering on the discharge o f his duties. The 
words o f the oath are significant. T h e y  are that the 
manager “ w ill fairly, im partially, and honestly conduct 
the (election) according to the provisions o f  the law 
providing how  primary elections shall be held in this 
State, and in accordance w ith  the law s o f this State 
governing regular elections for the offices o f this State.” 
T h is  is not the oath o f a private person charged with 
some private business; it is the oath o f a public officer 
to do the public business according to law . Its official 
character is further attested by the fact that the law  re­
quires it to be filed, not in the party archives, but in a 
public office. “ T h e  oath” , the last sentence o f the sec­
tion says, “ after being made and subscribed, shall be 
filed in the office o f the clerk o f the superior court of

24



the county in which the prim ary shall be held, w ithin  
five days after an election.”

A n d  another section provides that no person w ho  
has not taken this oath shall act as manager, clerk or 
assistant, or in any w ay take part in receiving, counting  
or consolidating the vote and that no manager shall per­
mit any person w h o has not taken the oath so to assist 
in a primary election.

C o d e  o f  1 9 3 3  and A n n . C o d e , § 3 4 -3 2 0 5 ,  A p ­
p ella n ts' b rief, p . 1 0 3 .

T h e  second section o f the Chapter provides in de­
tail how  the managers shall conduct the election. T h e y  
shall first, before the polls are opened, open the ballot 
box and publicly exhibit it, to show  that there are no  
ballots in it. T h e y  are then to lock or seal it, leaving 
only an opening for the deposit o f  ballots, and not again 
open it until after the close o f  the election. I f  a voter 
is challenged, they are to administer to him  an oath that 
he is qualified to vote “ according to  th e rules o f  the p a rty , 
and according to  th e election  la w s o f  this S ta te .”  A t  the 
end o f the election, they are to count the votes publicly  
and declare the result, and certify the result and transmit 
the certificate, the tally sheet, the ballots and all the 
election papers to the officer designated to receive them. 

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 -3 2 0 2 ,  this 
b rief p . 6 6 .

A n d  the officer designated by law  to receive these 
papers is not a party officer, but a public officer. T h e y  are 
to be transmitted to the clerk o f the superior court w ithin  
four days after the election. One list o f  voters and one 
of the registration lists, w ith the names o f those checked 
or marked as voters thereon, shall be exhibited by the 
clerk to any one desiring to inspect them, but the other 
documents are to be kept unopened and under seal and

25



delivered by the clerk to the next grand ju r y ; and if no 
action is taken by the grand ju ry, these papers shall be 
destroyed.

C o d e  o f  1 93 3  and A n n . C o d e ,  § 3 4 -3 2 0 7 ,  A p ­

pellan ts' b rief, p p . 1 0 3 , 1 0 4 .
N one o f this sounds like action b y  officials o f  what 

Appellants’ counsel (p . 4 5  o f  their brief) call “ a volun­
tary organization which has come into being because its 
adherents desired o f their ow n free w ill to associate 
w ith one another” — a sort o f  fraternal society in which 
the brothers have got together and decided on a few 
little things for their m utual fraternal benefit or social 
advantage. It is the law speaking, and it talks o f  oaths 
and ballot boxes and elections and voters and laws and 
clerks o f  the superior courts and grand juries. It  sounds 
like public, governmental action by  public officers. And 
that is exactly w hat it is.

T h is  law even prescribes the exact place where each 
voter in a primary shall vote. It says:

“ N o  elector shall vote in any such prim ary elec­
tion in a militia district other than the one in which 
he resides, or, if he resides in a city, in a ward other 
than the one in which he resides, if an election pre­
cinct shall be located in such w ard .”

C o d e  o f  1 93 3  and A n n . C o d e , § 3 4 -3 4 0 4 .
It also prescribes the time for holding primaries 

for State and national officers, saying that the election 
shall be held on the same day throughout the State “ at 
such date as m ay be fixed by  the State executive com­
mittee” , but not earlier than 6 0  days before the date 
o f the general election.

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 -3 2 0 3 ,  A p ­

pellants' b rief, p p . 1 0 2 , 1 0 3 .
A  conflicting provision is to the effect that such

26



primaries shall be held on the second W ednesday in 
September o f  each year in w hich a general election is held.

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 -3 2 1 2 ,  A p ­
p ella n ts' b r ie f, p p . 1 0 4 , 1 0 5 .

It is true, as counsel say in their brief (p . 5 3 ) ,  that 
the A ct o f the extraordinary session o f 1 9 4 4  authorizes 
the State Executive C om m ittee to fix the time for the 
State-wide prim ary and that the prim ary o f Ju ly  4 , 
1944, was held under that A ct. T h e  A ct o f  1 9 4 4 , as 
will appear from  the material portions o f it quoted in 
the appendices o f the briefs (A p p ella n ts ’ brief, pp. 5 3 , 
1 1 5 -1 1 7 ; this brief, pp . 71 - 7 3 ) ,  is the soldier voting A ct. 
Section 8, paragraph 2, o f  the A c t (A p p ella n ts ’ brief, 
pp. 5 3 , 1 1 6 )  provides that the executive committee m ay  
fix the date “ w ith ou t respect to the time now  provided  
by law as the date”  on w hich the prim ary shall be held.

Counsel emphasize this section as show ing that a 
primary is a voluntary affair as to which party authorities 
possess unlim ited discretion. In  fact, first, the A ct o f  
1944 is a tem porary law  enacted for an emergency; and, 
second,— and this is the poin t— it took a law to give the 
party authorities pow er to fix the time for the primary. 
It was only  by  the permissive grace o f a special statute 
that the party authorities were able to fix Ju ly  4 , 1 9 4 4 , 
as the date o f the prim ary involved in this case.

T h e  prim ary statutes, too, tie the primaries into  
the registration laws already herein considered. It is 
specifically provided by a section o f Chapter 3 4 -3 2  that 
no manager shall receive the ballot o f  any voter w ith ­
out finding that his name is on the list o f  registered voters 
furnished by  the county registrars.

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 -3 2 0 6 ,  A p ­

p ella n ts' b rief, p . 103 .
T h is  is emphasized also in the last section in the

27



Chapter, which makes “ all the laws’ ’ relating to quali­
fication and registration o f voters applicable to primaries 
and provides that no voter is entitled to vote in a primary 
‘*who is not a duly qualified and registered voter ac­
cording to law and who is not also duly qualified in ac­
cordance with the rules and regulations of the party hold­
ing same.”

Code of 1 933  and Ann. Code, § 3 4 -3 2 1 8 ,  Ap­
pellants’ brief, p. 1 08 .

T h e  section cited not only  makes the registration 
laws applicable to primaries; it also actually makes into 
law party rules and regulations respecting the qualifica­
tion o f voters, which alone makes the party an instru­
mentality o f the State. Therefore, the party rule ex­
cluding voters on account o f color becomes State law 
and collides head-on w ith the Fifteenth A m endm ent.

A n d  so on and on the lawT makes the prim ary an 
instrument o f the State. Like the A ustralian B allot Law 
already discussed (C ode § 3 4 -1 9 0 4 ,  pp . 1 8 -2 1 , ante), the 
general primary law requires an official ballot and com­
mands that the party authorities shall provide it.

Code of 1 933  and Ann. Code, § 3 4 -3 2 0 8 ,  Ap­
pellants’ brief, p. 1 0 4 .

T h e  provisions respecting contests are not fu ll, but 
make a contest a legal matter, not a party matter. An 
affidavit m ust be filed by a contestant, specifying what 
ballots can probably be proved illegal. T h e  clerk of 
the superior court, w h o, as has already been seen, has 
the custody o f the election papers, then turns the papers 
over to the person designated to preside over the con­
test, w ho shall examine said suspected ballots and none 
other.”

28



C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 -3 2 1 1 ,  A p ­

p ella n ts’  b rief, p . 1 0 4 .
T h e  county unit vote is a device developed by  

the Democratic party, w hich the General A ssem bly has 
written into law . T h is  statute provides that in pri­
maries to nom inate candidates for members o f Congress, 
Governor, Statehouse officers and appellate court judges 
the candidate receiving the highest num ber o f popular  
votes in the county shall receive in the nom inating con­
vention the county unit vote o f  the county, that is, tw o  
votes for each representative the county has in the lower 
House o f the General A ssem bly. T h is  statute provides 
for the ascertainment and casting o f the county unit 
vote in great detail.

C o d e  o f  1 9 3 3 , A n n . C o d e ,  § 3 4 -3 2 1 2 ,  A p ­

p ella n ts’ b r ie f, p p . 1 0 4 -1 0 6 .
A n d  it is m andatory, not hortatory. A  candidate 

m ust receive a a m ajority  o f  the county unit votes to be 
nominated. I f  there is a tie in the popular vote o f a 
county, the county unit vote shall be equally divided. 
W ithin 10 days after the prim ary, the party authorities 
shall consolidate the county unit vote and publish the 
result in a newspaper at the capital. T h e  party authori­
ties, through a convention or otherwise, shall declare 
candidates receiving the m ajority  o f the county unit votes 
to be the nominees o f  the party, and it shall be the d u ty  
of such authorities to see to it that the names o f these 
nominees get on the general election ballot. I f  there is 
s tie in the county unit vote, the party authorities shall 
declare the candidate receiving a m ajority  o f the popular 
vote to be the nominee.

T h e  next section, which provides the procedure 
in the event no candidate for G overnor or U nited  States 
Senator receives a m ajority  o f  the county unit vote, is

29



equally emphatic. In  such case, there shall be a second 
primary on a designated day, the result o f  w hich shall 
be ascertained and declared w ith all the imperative par­
ticulars required by § 3 4 -3 2 1 2 .

Code of 1 93 3  and Ann. Code, § 3 4 -3 2 1 3 ,  Ap­
pellants’ brief, p. 1 0 6 , this brief, p. 6 7 . 

Counsel for A ppellant make a good  deal o f  the cir­
cumstance that the Georgia law  does not require politi­
cal parties to hold conventions. In the view  o f A ppel­
lee, this is not im portant, but it m ay be w orth  noting 
that § §  3 4 -3 2 1 2  and 3 4 -3 2 1 3  require the State con­
vention to do certain things w ith respect to declaring the 
result o f the county unit vote ; and the section next fol­
low ing provides that when a second prim ary is held as 
required by § 3 4 -3 2 1 3 , “ such party or its authority 
shall not hold its convention until after the expiration 
o f 15 days from  the date o f such second prim ary elec­
tio n ."

Code of 1 93 3  and Ann. Code, § 3 4 -3 2 1 4 ,  Ap­
pellants’ brief, p. 107 .

T h e  conclusion is inescapable from  these county 
unit statutes that a political party holding a primary 
in Georgia is a creation o f the State. A  political party 
m ay be a voluntary organization ; but w hen it decides 
to hold a primary and begins to carry out its decision, its 
every action is prescribed and circumscribed b y  law.

T h e  law literally overlooks nothing in its control 
o f primaries. It provides carefully even for special pri­
maries as fo llo w s:

“ Special primary elections to fill vacancies in 
any o f the offices referred to in this law  shall be 
held on such date as m ay be fixed by the State 
executive committee o f such p arty ; but the same 
rules prescribed in this law  for determining the re­

30



suit in general primary elections for the offices 
named shall govern in determining the result o f  any  
special prim ary election; and the second primary  
election shall be held w ithin 15 days after the date 
o f such first prim ary election, in the event no candi­
date receives a m ajority  o f  all o f  the county unit 
votes throughout the State; and the same duties and 
obligations are hereby im posed upon the chairman, 
secretary, convention or other party authorities 
in the case o f  such special prim ary elections as are 
in this law  im posed upon them in the case o f  general 
primary elections; Provided, that if no convention  
o f such party shall be called or held, to fo llo w  a 
special prim ary election, the declaration o f the re­
result shall be made in such manner as m ay be pre­
scribed by  the State committee or other authority  
o f such p arty .”

C o d e  o f  1 9 3 3  and A n n . C o d e ,  § 3 4 -3 2 1 5 .
O n  p. 14 o f their brief, counsel for A ppellant, dis­

tinguishing the law  o f  Georgia from  the law  o f T exas, 
say: “ Party executive committees in Georgia are not cre­
ated by statute nor required to be created.”  T h is  m ay be 
strictly true, but such committees are named in various 
provisions o f the statutes, which prescribe their powers 
and duties. T h e  statute just cited is one o f these. 
There are such references in § §  3 4 -3 2 1 2  and 3 4 -  
3213 , just discussed in this brief. A n d  others w ill be 
found in the law s set out in appendices o f this brief and 
Appellants’ brief. It w ou ld  not seem to make any differ­
ence on the question whether political parties are agencies 
of the State that their governing committees are not re­
quired by law  to be created, if in fact the law  defines their 
powers and prescribes their duties in respect to party pri­
maries.

31



Another section o f the original prim ary law  that re­
quires notice is § 3 4 -3 2 1 7  (A p p ellan ts ’ brief, pp . 107, 
1 0 8 ) .  T h is  section provides that nothing in the county 
unit law shall be construed to require any definite unit of 
election for candidates for members o f Congress, judges 
o f the superior courts, members o f the General Assembly  
and county officers and “ shall not be construed to require 
a primary for any o f the last named officials, except in 
their respective districts, circuits or counties, as provided 
by law .”  A n d  it then provides that primaries for the offi­
ces designated “ shall be held on the date named in section 
3 4 -3 2 1 2 ”  for U nited States Senator, G overnor and 
Statehouse officers. W h a t  is this if it is not a requirement 
that primaries be held for nom ination o f candidates for 
the offices named in the section? A n d  if it is that, what 
becomes o f A ppellants’ main argument that the Georgia 
law does not require that primaries be held?

T h e  amendatory primary law s, enacted since the 
adoption o f the Code o f 1 9 3 3  are not less stringent than 
the original statutes in their control o f primaries.

T h u s, an A ct o f 1 94 3  requires that a certificate, 
show ing the names o f candidates nom inated in a primary 
and signed “ by the chairman and secretary o f the State 
C om m ittee,”  “ shall be filed in the office o f  the Secretary 
o f State o f this State.”

Ga. Ann. Code Supp., § 3 4 - 3 2 15a, Acts 1943, 
p. 3 4 7 ; Appellants’ brief, p. 1 0 7 .

In 1 9 3 9 , the General A ssem bly wrote into positive 
law a Democratic party custom to nom inate candidates 
for the State Senate by the rotation system. U nder this 
custom, the counties in a senatorial district took turns in 
furnishing the senator, the prim ary being held only in 
the county furnishing the senator. T h e  A ct o f  1939  
makes this system obligatory, providing that a candidate

32



so nominated " shall be the nominee o f such party for  
State Senator."

Ga. Ann. Code Supp., § §  3 4 -3 2 1 9  to 3 4 -3 2 2 2 ,  
Acts 1 9 3 9 . p. 3 1 1 ;  this brief, pp. 6 7 -6 9 .

In 1 9 4 1 , a statute was enacted w ith a recited " le g ­
islative intent and purpose . . .  to effectuate fair and h o n ­
est primary elections for the nom ination o f candidates 
for public office in this S ta te ," by  furnishing machinery  
for a recount o f the vote in questioned primaries. Under  
this statute, a defeated candidate w h o received one-third  
of the vote cast in a county m ay demand a recount. T h e  
law provides the procedure for the recount and makes 
available for it not on ly  party machinery, but also State 
machinery. T h u s  a judge o f the superior court is a m em ­
ber and chairman o f the recount committee. It is the duty  
of the sheriff o f the county to furnish subpoenas for w it­
nesses. T h e  judge o f the superior court o f the county is 
given power to punish recalcitrant witnesses for con­
tempt. It is made the duty o f the officer o f  the county  
having custody o f the registration lists and cards to de­
liver them to the committee on demand or subpoena. T h e  
election papers and ballot boxes used by the committee 
are to be safely kept by  the county officer whose duty it 
is to receive them from  the election officials in the first in­
stance. Such officer shall deliver them to the committee 
for the recount. A n d  in the event that the executive com ­
mittee o f the county refuses to give effect to the report o f  
the committee, m andam us or other appropriate legal 
remedy lies in the courts o f  the State to compel them to 
do so.

Ga. Ann. Code Supp., § §  3 4 -3 2 2 3  to 3 4 -3 2 3 6 ,  
Acts 1 9 4 1 , p. 4 3 2 ;  Appellants'  brief, pp. 1 OS- 
114 .

T h is statute is not reconcilable w ith the idea that a

33



party primary is a private affair. It treats such elections 
as matters o f grave public concern, imposes public duties 
on public officers, provides machinery o f the State and 
compels its use. It provision o f the remedy o f mandamus 
to compel party committees to abide b y  the findings of 
recount committees is particularly significant; for m an­
damus lies only to compel performance o f official duties. 

" A l l  official duties should be fa ith fu lly  per­
form ed; and whenever, from  any cause, a defect of 
legal justice w ould  ensue from  a failure or improper 
performance, the writ o f m andam us m ay issue to 
compel a due perform ance.”

Code of 1 9 3 3  and Ann. Code, § 6 4 -1 0 1 .

T h is  recount law is the State in action in a govern­
mental matter. It has nothing to do w ith  “ voluntary  
action by a volunteer group .”

A n d  there are other statutes dealing w ith primaries, 
not contained in Chapter 3 4 -3 2 . w hich have not yet been 
discussed.

A ll candidates for State and county offices in any 
general or primacy election shall file statements o f  their 
campaign expenses w ithin 2 0  days after the election. And  
no candidate in a primary w h o fails to do so shall be de­
clared the nominee o f his party.

Code of 1 9 3 3  and Ann. Code, § §  3 4 -2 0 0 1 ,  34- 
2 0 0 2 , this brief, p. 6 5 .

N o  candidate for nomination to any office in any 
primary, or for election in any general or special election 
shall expend, or agree to expend, more than $ 2 5 ,0 0 0  in 
his campaign for nom ination or election. Every such can­
didate m ust file a sw orn statement o f  his expenditures 
w ith the State Com ptroller General. Penalty for viola­
tion is impeachment.

34



Ga. Ann. Code Sapp., § §  3 4 -2 0 0 3  to 3 4 -2 0 0 5 ,  
Acts 1 9 4 3 , p. 4 4 1 , this brief, pp . 6 5 , 6 6 .

T h e  law  even fixes the hours for holding primary  
elections. " T h e  hours for holding all general, special, and 
primary elections , ”  it says, "sh a ll be from  7 o ’ clock 
A. M . to 6 o ’ clock P. M . "

Ga. Ann. C o d e  Sapp., § 3 4 - 2 0 0 la , Acts 1 9 4 3 .  
p. 4 8 0 ;  this brief, p. 6 6 .

If  a prim ary were on ly  w hat A ppellants seem to  
think it is, that is, just a little private party am ong friends, 
there w ould  be no more reason for the law  to fix  the 
hours for it than for it to set the time, say, for the conven­
ing o f an E lk s ’ lodge.

A  comprehensive law  providing for absentee voting  
by mail was made to apply specifically to primaries, as 
is shown by  the first section o f the statute, which only  is 
reproduced in A p p en d ix  A  o f  this brief.

Code of 1 9 3 3  and Ann. Code, § §  3 4 -3 3 0 1  to 
3 4 -3 3 1 5 ,  this brief, p. 6 9 .

A n  am endatory A ct o f 1 9 4 3  also makes this law  
applicable to primaries.

Ga. Ann. Code Sapp. § 3 4 -3 3 0 1 ,  this brief, p. 6 9 .
A n d  an am endm ent o f 1 94 1  to § 3 4 -3 3 0 9  o f this 

law requires the ordinary o f the county, at the county’s 
expense, to furnish ballots to the county registrars for  
mailing to absentee voters; another exception to the state­
ment o f opposing counsel that the expense o f primaries 
is borne by  the party holding the primary.

Ga. Ann. Code Supp., § 3 4 -3 3 0 9 ,  this brief ,p. 6 9 .
T h e  political party, even when not holding a pri­

mary, is so m uch a part o f  the governm ental machinery 
of the State that no one except a duly qualified and regis­
tered voter can participate in a political mass meeting or 
convention for the purpose o f electing or nom inating

35



officers or delegates to any convention, and all such mass 
meetings m ust be held at the county courthouse.

Code of 1 93 3  and Ann. Code, § §  3 4 -3 4 0 1 ,  34- 
3 4 0 2 , Appellants’ brief, p. 115 .

T h e  same kind o f thing as the requirement that the 
meetings referred to be held at the county courthouse is 
the fact that the Secretary o f the State Dem ocratic Execu­
tive Com m ittee is required by  the Rules o f  the party (R .t 
p. 3 4 , par. 2 )  to maintain an office in the State Capitol 
It is just that political parties, as everybody actually 
know s, and ought to recognize legally, are public insti­
tutions discharging governm ental functions.

Reference has already been made to the A c t o f  1944  
— the soldier voting law — under which the prim ary in­
volved in this case was held. There are several provisions 
o f this statute material on the question whether a pri­
mary is a private or public affair.

T h e  first section o f this A ct makes it specifically 
applicable to primaries.

Acts 1 9 4 4 , Ex. Sess., p. 2, this brief, p. 7 1 .
T h e  first paragraph o f § 8 o f this A ct provides that 

all candidates, or the political party nom inating them, 
shall file notice o f candidacy w ith the Secretary o f State, 
or the ordinary, 9 0  days prior to the genera! election. The 
second paragraph o f the section, w hich has already been 
referred to, confers on the State Executive Committee 
power to fix  the date for the prim ary “ w ith ou t respect 
to the time now  provided by  law  as the date.”

Acts 1 9 4 4 , Ex. Sess., pp. 4 , 5 , Appellants’ brief, 
pp. 1 15 , 116 .

Section 13 makes it the duty o f the county registrars 
to furnish primary ballots, on application, “ to any mem­
ber o f the m ilitary w h o is a registered and qualified voter 
and w h o is a member o f said political party holding the

36



said primary a ballot for the use o f the m ilitary voter w h o  
is a member o f  the said political party in casting his vote 
in the said prim ary election.”  A n d  there are detailed di­
rections to the registrars as to the manner o f handling the 
ballots.

A c ts  1 9 4 4 , E x . S ess., p . 6 , A p p e lla n ts ’ b rief, p p . 
1 1 6 , 1 17 .

O n the day o f the prim ary, it is not the party au­
thorities w h o handle the m ilitary b a llots; it is the county  
registrars, public officers, whose offices are created by  
law. T h e y  receive the ballots and keep them in a safe 
place unopened until the day o f the election. O n  that day, 
the registrars open the ballots in the presence o f the elec­
tion managers, record receipt o f them in their permanent 
records, check the names o f the voters by  the official regis­
tration lists, and then actually deposit the ballots in the 
ballot box .

A c ts  1 9 4 4 , E x .  Sess.,  p . 6 § 16, this b rief, p . 7 2 .
T h is  section is utterly inconsistent w ith the idea 

that there is anything private and unofficial about a pri­
mary. It necessarily means that the prim ary is a public 
institution, designed to discharge w hat is in Georgia the 
most im portant part o f the m ost im portant governm en­
tal function.

T h e  public nature o f the prim ary is further em pha­
sized by § 18 o f  this A c t, which creates a W a r  B allot 
Commission, com posed o f high State officials, the G over­
nor, the President o f the Senate, the Speaker o f the House, 
the Attorney General and the Secretary o f State, whose  
function is to make such “ provisions and regulations”  as 
are “ necessary to effectuate the operation o f this A c t ,”  
and which is empowered “ to settle and determine all ques­
tions o f law , procedure and regulation governing the 
registration and voting o f persons in the m ilitary.”  A n d

37



the legislature was careful to specify that the powers of 
the Com m ission extend to “ party primaries.”

A c ts  1 9 4 4 , E x . S ess., p . 7, this b rie f, p . 7 3 .
A n d  § 2 0  o f the A ct provides that all the expense 

incident to its operation, primaries not being excepted, 
“ shall be borne by the counties,”  not by  the parties. 

A c ts  1 9 4 4 , E x . S ess., p . 7, this b rief, p . 7 3 .
There are also criminal statutes penalizing various 

violations o f the primary laws, which are inconsistent 
w ith the idea that the prim ary is on ly  the private concern 
o f a voluntary political organization. These are codified, 
along w ith all the penal statutes relating to all elections, 
in Chapter 3 4 -9 9  o f the Code o f 1 9 3 3  and the Annotated  
Code and its Supplem ent, and are set out in fu ll in A p ­
pendix A  o f this brief, pp. 7 0 , 7 1 . T h e y  are briefly 
summarized here, the acts penalized being as fo llo w s :

§ 3 4 -9 9 2 2 :  W ilfu l  violation by  any election m ana­
ger o f any duty devolved upon him  by  law .

§ 3 4 -9 9 2 3 :  V iolations o f  specific sections o f  the 
primary laws, codified in Chapter 3 4 -3 2 ,  regulating the 
duties o f  managers and clerks o f  the superior court.

§ 3 4 - 9 9 2 4 :  Fraud or corruption on the part o f an 
election manager in the m anagem ent o f  an election.

§ 3 4 - 9 9 2 5 :  False swearing b y  a challenged voter 
taking the prescribed oath, or personating another and 
taking the oath in his name in order to vote,

§ 3 4 - 9 9 2 6 :  Buying and selling votes or in any way 
participating therein.

§ 3 4 - 9 9 2 8 :  V o tin g  more than once or at more than 
one polling place.

§ 3 4 -9 9 3 4  (S u p p .)  : Fraudulently signing the v o t­
ers’ identification book.

§ 3 4 -9 9 3 5  (S u p p .)  : V io lation s o f any o f the pro­
visions o f the A ct relating to recount o f ballots.

38



§ 3 4 -1 9 3 3  (<S u p p .)  : E xtend ing to primary elec­
tions all penal laws relating to illegal practices in general 
elections.

T h is  last is from  an A ct o f 1 9 3 9 . Such blanketing  
of the prim ary w ith  all the penal laws relating to general 
elections exhibits a grow ing sense on the part o f the legis­
lature o f the importance o f the prim ary as part o f  the 
electoral process. A n d  the fact, which appears from  the 
Supplement to the A nn otated  Code, that the on ly  penal 
election laws enacted since the adoption o f the C ode o f  
1933 relate to primaries, is not w ith ou t significance. T h e  
law -m akng bod y is increasingly concerned to protect the 
public interest involved in prim ary elections.

F inally, illustrating that the primary is an integral 
part o f the electoral process, there are a num ber o f special 
statutes regulating primaries in particular counties, a few  
of which are set forth  in A p p en d ix  B  o f this brief, p o st ,  
p. 74.

Reference has already been made to one o f these, the 
Act o f 1 9 2 5  relating to the constitution o f the D em ocra­
tic Executive Com m ittee o f  M uscogee C o u n ty , o f  which  
Appellants are members {a n te , p. 2 2 ) .  A ppellants, 
we repeat and emphasize, hold  their offices by  vir­
tue o f this A c t, and b y  the same token they are public 
officers, and all their action w ith  reference to this primary  
was governm ental action.

A  few  o f the others merit special notice. T h e  m ost 
important o f  these, perhaps, is an A ct o f 1 9 4 3 , relating 
to D eK alb C o u n ty . T h is  A ct requires political parties in 
the county to “ nom inate their candidates for all offices 
which are . . . elective by  the people o f said county, by  
primary elections.”

A c ts  1 9 4 3 , p p . 9 4 4 , 9 4 5 , § 2, this b rief, p . 74 .
Here is a law that requires primaries in Georgia. It

39



is operative only  in one county, but is nevertheless im ­
portant as an assertion o f pow er, w hich, Appellants  
themselves concede, makes a primary an integral part of 
the electoral process. It is true that the pow er has not been 
exercised in M uscogee C o u n ty , but the A ct illustrates the 
General A ssem bly ’ s conception o f the nature and im port­
ance o f the primary as part o f  the electoral m achinery; for  
this A ct o f 1 94 3  was duly enacted by  the General A ssem ­
bly o f  the State o f Georgia as a public law .

A nother A ct o f 1 9 4 3 , effective on ly  in D odge  
C ou nty, emphasizes the General A ssem b ly ’ s idea that the 
primary is a matter o f p u blic  concern. T h is  A c t requires 
the county commissioner, w h o is the officer in charge of 
the county governm ent, to publish in the official gazette 
o f the county, 10 days before every prim ary election, a 
list o f the registered voters in the county, and 10 days 
after the vote has been consolidated, a list o f  the electors 
w ho voted in the election; the cost o f both  publications 
to be paid out o f the county treasury.

A c ts  1 9 4 3 , p. 9 5 1 , § 1, this b rie f,  p . 7 5 .
Three o f these special Acts, operative in Early, M it ­

chell and W ilc o x  Counties, regulate in detail primaries 
for the nom ination o f county commissioners. A ll  three 
provide for the nom ination o f a commissioner from  spe­
cified districts in the county. O ne provides that a candi­
date shall receive a m ajority o f the votes cast in his dis­
trict; another fixes the time for the election and provides 
that no voter is eligible to vote in the prim ary unless he 
is also eligible to vote for the county ordinary.

A c ts  1 9 2 4 , p. 3 2 9 , this b rief, p . 7 5 .
A c ts  1 9 2 7 , p. 6 3 2 , this b rief, p . 7 6 .
A c ts  1 9 3 7 . p. 1 4 4 9 , this b rief, p . 7 8 .

Several such statutes effective in counties having  
more than one representative in the lower house o f the

40



legislature, o f  which the A ct relating to M eriwether 
C ounty is typical, provide that any person offering for  
representative in a prim ary shall specify the particular 
candidate he desires to oppose or succeed.

A c ts  1 9 3 7 -3 8 , E x .  S ess., p. 8 5 4 , this b r i e f p. 
7 6 .

These A cts o f  course are not conclusive, but they 
illustrate and emphasize the extent o f governm ental regu­
lation o f primaries in Georgia.

T h e  Georgia prim ary laws cited and examined in 
this division o f this brief regulate primaries to the extent 
o f complete control. T h is  is practically conceded by A p ­
pellants, but, they say, even such complete regulation is 
not enough. In their note on p. 3 7  o f  their brief, they say: 
“ Railroads and m any other businesses, e. g ., the liquor 
business, are thoroughly regulated in Georgia. Such regu­
lation does not transform  them into agencies o f the 
State.”

T h e  answer to that o f course is that the railroad and 
the liquor businesses are private businesses, while elec­
tions for public office are the public business, and all w ho  
engage in them become ipso facto agents and representa­
tives o f the State in carrying on the public business. T h e  
General A ssem bly o f Georgia has recognized that fact 
and assumed control o f every step in the electoral process, 
including the prim ary, which it has made, through abso­
lute control at every stage, an integral part o f the election 
machinery. A n d  this is so, under the applicable decisions, 
whether or not a prim ary is required and a political party  
voluntarily assumes to be regulated by deciding to hold  
one.

4. T he Suprem e  Court D ecisions

It is unnecessary to dw ell on the decisions o f the Su­
preme C ou rt prior to U . S. v . C lassic and S m ith  v . A l l -

41



wright. In Nixon v. Herndon, 2 7 3  U. S. 5 3 6 , 4 7  Sup. 
Ct. 4 4 6 , 71 L. ed. 7 5 9 , and Nixon v. Condon, 2 8 6  U. S. 
7 3 , 5 2  Sup. Ct. 4 8 4 , 76  L . ed. 9 8 4 , 8 8  A . L. R. 4 5 8 , the 
C ourt recognized that party action excluding a Negro  
from  a Democratic primary in T e x a s  m ight be State ac­
tion ; holding that it was such in the first case because 
it was in pursuance o f a State law  directly declaring a 
N egro ineligible to participate in a Dem ocratic primary, 
and in the second, for the reason that it was in pursuance 
o f a resolution o f the Dem ocratic State Executive C o m ­
mittee, adopted under a State law  authorizing the com ­
mittee to prescribe the qualifications for party m em ber­
ship. T h e  decision in each case was that the exclusion  
was discriminatory State action in violation  o f the F our­
teenth Am endm ent, the question whether it violated the 
Fifteenth not having been considered.

B ut in Groveg v. Townsend, 2 9 5  U. S. 4 5 , 55  Sup. 
Ct. 6 2 2 , 79 L. ed. 1 2 9 2 , 9 7  A . L . R. 6 8 0 , the C ou rt held 
that where the exclusion was b y  virtue o f a resolution of 
the State convention o f the party, it was in pursuance of 
voluntary party action, not State action, and, therefore, 
was not violative o f either the Fourteenth or Fifteenth  
A m endm ent.

I f  Groveg v. Townsend were still the law , this case 
w ould not be here. But it was expressly overruled in 
Smith v. Allwright, which was based on U. S. v. Classic; 
and the decisions in Allwright and Classic, it is insisted 
for Appellee, are the law o f the case at bar.

T h e  broad general principle ruled in Allwright and 
Classic is that a primary is an election; that is, it is on ex­
actly the same basis as any general or other State election, 
as the C ourt itself puts it in both decisions ( 3 1 3  U . S. 
3 1 8 , 321 U . S. 6 6 0 ) ,  “ where the prim ary is by  law  made 
an integral part o f the election m achinery.”  Specifically,

42



the C ourt held in these decisions that the primary in both  
Louisiana and T ex a s is by  law  an integral part o f  
the election machinery. A n d  in Allwright, Classic not 
involving the right o f a N egro to vote, it was held direct­
ly that exclusion o f a N egro from  participation in a pri­
mary, made by  law  an integral part o f the election m a­
chinery, was a violation  o f the Fifteenth Am endm ent.

There is no controversy here over w hat the C ourt 
decided in Allwright. T h e  narrow question is whether the 
basis o f the decision is the requirement o f the T ex a s law  
that a prim ary be held. Appellee’ s insistence is that the re­
quirement o f  a prim ary is im m aterial; that the on ly  re­
quirement necessary to make the primary an integral part 
of the electoral process is the requirement that the pri­
mary, if and when held, be held according to law.

T h e  T ex a s law  does provide that candidates for o f ­
fices to be filled by election shall be nom inated at a pri­
mary election if the nom inating party cast over 1 0 0 ,0 0 0  
votes at the preceding general election. T h e  Georgia law  
contains no such provision, but does regulate and control 
primaries in the m inutest detail, as appears from  the 
Georgia statutes cited and discussed in division 3 o f this 
brief.

A n d  it is Appellee’ s contention that Smith v. All­
wright is based on the comprehensive regulatory p rov i­
sions o f the T ex a s statutes, not on the requirement that 
parties nom inate their candidates in primaries. There is 
certainly nothing in the opinion in the case to ju stify  the 
ferocious emphasis laid by  A ppellants’ counsel on the 
bare requirement o f  the T ex a s statute that primaries be 
held.

T h a t statute is mentioned only  once in the opinions 
which extend for 2 0  pages in the official report; it is not 
referred to even in the dissenting opinion. In the state­

43



ment o f the case, the C ou rt says (3 2 1  U . S. 6 5 3 )  : “ Pri­
mary elections for U nited  States Senators, Congressmen  
and state officers are provided for by Chapters T w elve  
and Thirteen o f the (T e x a s )  statutes. U nder these chap­
ters, the Democratic party was required to hold the pri­
mary which was the occasion o f the alleged w rong to pe­
titioner.”  A n d  in footnote 6 to that page, the T ex a s sta­
tute is cited w ithout com m ent in w hat the C ou rt calls “ a 
sum m ary o f the state statutes regulating  primaries.”

It is not thought that this fact is absolutely con­
trolling. B ut it is significant that in a long opinion , dis­
cussing and analyzing the T ex a s statutes and com ing to 
the conclusion that they make the prim ary an integral 
part o f the election machinery, the C ou rt lays no empha­
sis whatever on the statutory requirement that primaries 
be held; does not in fact m ention the requirement in an 
exhaustive discussion o f the applicable provisions o f the 
statutes. Careful reading o f the opinion w ill disclose that 
the C ou rt’ s conclusion was based on its reasoning that the 
minute regulation  o f the primary made it an instrum ent­
ality o f the State.

T h is  is apparent from  the C o u rt’ s exam ination in 
detail o f the T ex a s statutes and the statement o f  its con­
clusions based thereon (3 2 1  U . S. 6 6 2 - 6 6 4 ) .  In this pas­
sage, the statutory requirements, briefly sum m arized, are 
as fo llo w s: Electors w ho pay a poll tax and possess the 
requisite qualifications as to age and residence can vote. 
C ou n ty  executive committees m ust be elected and their 
chairmen constitute a district committee. Election officers 
or managers must be named by the county committees. 
T h e  voters m ust elect delegates to the county, district and 
state conventions. T h e  State convention names the State 
executive committee. P latform  demands for specific leg­
islation must have the prior endorsement o f  voters in the

44



primary. T h e  primaries are conducted under State statu­
tory authority. T h e  executive committees canvass the re­
turns. T h e  party authorities certify the candidates to the 
appropriate State officers for inclusion on the official bal­
lot for the general election. O n ly  names so certified can 
be placed on the ballots. V oters m ust take an oath that 
they have not participated in a primary for the selection 
of a candidate for the office for w hich the nom ination is 
made. A n d  m andam us lies to compel party officers to per­
form their statutory duties.

A n d  that is all. There is no m ention o f the specific 
statutory requirement that primaries be held. Y e t  the 
Court’ s conclusion on those statutes so sum m arized is 
as follow s (3 2 1  U . S. 6 6 3 )  :

" W e  think that this statutory system for the se­
lection o f party nominees for inclusion on the gen­
eral election ballot makes the patty which is requited 
to follow these legislative directions an agency of 
the state in so fat as it determines the participants 
in a primary election. The party takes its charac­
ter as a state agency from the duties imposed upon 
it by state statutes; the duties do not become matters 
o f private law  because they are performed by a 
political p arty .”  (E m phasis ours.)
A n d  then the C ou rt takes the next inevitable step. 

It says (3 2 1  U . S. 6 6 4 ) :
"W h e n  primaries become a part o f the machinery 

for choosing officials, State and N ational, as they 
have here, the same tests to determine the character 
o f discrimination or abridgment should be applied 
to the prim ary as are applied to the general election. 
If the State requites a certain electoral procedure, 
prescribes a general election ballot made up o f party  
nominees so chosen and limits the choice o f the elec-

45



torate in general elections for state offices, practically  
sp ea k in g , to those whose names appear on such a 
ballot, it endorses, adopts and enforces the discrimi­
nation against Negroes, practiced by  a party entrust­
ed by  T ex a s law w ith the determination o f the 
qualifications o f  participants in the prim ary. T his  
is State action w ithin the meaning o f the Fifteenth  
A m en dm en t.”  (E m phasis ours.)
Appellants attribute a good deal o f importance to 

the phrase in the above quotation, “ as they have here.”  
T h e  Georgia law  relating to primaries o f course differs 
from  the T ex a s law . It m ay be conceded that in some re­
spects the T ex a s law  is more stringent, though there are 
m any similarities, as the fo llo w in g  brief com parison of 
the tw o w ill sh o w :

T h e  requirements respecting qualification o f voters 
are essentially the same. T h e  Georgia law  governing the 
selection o f the county committee in this case, under the 
special A ct o f  1 9 2 5 , differs not m uch from  the Texas  
law. T h e  choice o f election managers is regulated about 
the same w ay in both States. C onventions are not re­
quired by law  in Georgia, though the law  tacitly recog­
nizes them and, “ practically speaking,”  they are always 
held. Party authorities in Georgia, as in T ex a s , canvass 
the returns and certify them to State officials for inclusion 
on the ballot for the general election. T h e  prim ary elec­
tion ballot in both Georgia and T ex a s is prescribed by 
law, and the nominees o f Georgia primaries, again “ prac­
tically speaking,”  always go on the official general election 
ballot, though in tw o  recent cases, where prim ary nom i­
nees for judicial office died before the general election, the 
vacancies were filled, in one case by the State convention  
(R ., p. 2 3 , par. 1 9 ) and in the other by the State D em o­
cratic Executive Com m ittee (R ., p. 2 5 , par. 2 1 ) .  There

46



is no specific statutory provision in Georgia for m an­
damus against party authorities, except in the recount 
statute already discussed (ante, p. 3 3 ) ,  though it m ay  
well be that the remedy w ou ld  lie under the general law .

T h e  differences are inconsequential. T h e  m ain thing  
is that the Georgia law , by  requiring “ a certain electoral 
procedure," as the C ou rt says in the above quotation, re­
cognizes and regulates primaries to such an extent as to  
make them an integral part o f the election machinery 
within the m eaning o f the C o u rt’ s decision in Smith v. 
Allwtight. T h e  Georgia statutes are enough like the 
Texas statutes to make the decision in Smith v. Allwtight 
directly controlling in the case at bar.

H o w  little difference the variations really make is 
illustrated by  the C o u rt’ s treatment in Allwtight o f the 
matter o f the cost o f  primaries. O pposin g counsel differ­
entiate the Georgia law  from  the T ex a s law  by  pointing  
out that under the form er the expense o f holding prim a­
ries is paid by  the political party causing them to be held, 
whereas in the latter apportionm ent o f the expense 
among the candidates is regulated by statute (their brief, 
pp. 14, 5 9 , 6 0 )  ; it being im plied apparently that the one 
is not, and the other is, State action.

T h e  C ou rt in Allwtight disposed o f a similar dis­
tinction sought to be made there between the law  o f  
Texas and the law  o f Louisiana in these words (3 2 1  
U. S. 6 6 3 , 6 6 4 ) :

" T h e  plan o f the T ex a s primary fo llo w s sub­
stantially that o f  Louisiana, w ith the exception that 
in Louisiana the state pays the cost o f the prim ary, 
while T ex a s assesses the cost against candidates. 
In numerous instances, the T ex a s statutes fix or 
lim it the fees to be charged. W hether paid directly 
by the State or through State requirements, it is

47



State action which compels .”  (E m phasis ours.)
E xtending the principle thus announced a step fur­

ther: W hether the law  requires the State to pay the cost, 
or requires the candidates to pay it, or requires the politi­
cal party to pay it, “ it is State action which compels.” 
T h e  point is that the law  takes care o f the matter in one 
w ay or another.

So it is as to all these regulations o f primaries. The  
essential thing is that “the State requires a certain electo­
ral procedure.”  T h e  procedure in T ex a s m ay differ from  
the procedure in Georgia, but in both  States the law  re­
quires it— it is State action which compels.

T h e  sole refuge o f Appellants, then, is the position 
that a primary is not an integral part o f the electoral 
process unless the law  o f the State requires it to be held. 
T h e  Supreme C ourt held no such thing in Smith v. All- 
wright. It said (3 2 1  U . S. 6 6 3 )  that primaries in Texas  
“ are conducted by the party under State statutory author­
ity” , not com pulsion. It held only  that recognition 
and regulation o f primaries by the law  o f the State 
make the primary an essential part o f the electoral process. 
A n d  that is logical and right. T h e  essential thing is the 
holding o f the primary. I f  the law  requires it to be held, 
holding it is State action. I f  in the event it is held, the 
law  requires it to be held, according to law, then, just as 
logically, holding it is also State action. A n  option 
once exercised ceases to be an option and further steps 
are taken thereafter w ithout reference to the fact that the 
option ever existed.

T h e  Democratic Party o f T ex a s was required by 
law to hold the primary involved in Smith V. Allwright, 
and to hold it in accordance w ith the regulations pre­
scribed by law . T h e  Dem ocratic Party o f Georgia, after 
January 2 7 , 1 9 4 4 , the date o f the decision to hold

48



the primary and o f the adoption o f the Rules governing  
it (R ., p. 15, par. 3 ;  p. 2 8 , R ule I ) ,  was required  b y  la w  
to hold the prim ary o f July  4 , 1 9 4 4 , in accordance w ith  
the regulations prescribed by  law . A fter January 2 7 , 
1944, so far as the obligation to hold a prim ary was con­
cerned, the Dem ocratic Party o f Georgia was no more 
a voluntary organization than the Dem ocratic Party o f  
Texas was under the T ex a s statute. B oth  were creatures 
and agents o f  the law  as to their respective primaries 
and neither could deviate from  the respective methods 
prescribed by  law for the holding o f those primaries. 
The primary in the one case as much as in the other was 
by law and in fact an integral part o f  the electoral process. 
Neither party could exclude a voter from  either primary  
on account o f  his race, in disobedience to the constitu­
tional mandate, any more than it could abrogate any 
other law constituting part o f  the electoral process. T o  
hold the contrary in Georgia w ou ld  be to hold that no 
law is obligatory on the Democratic Party in Georgia. 
The Democratic Party in Georgia, having made the elec­
tion to hold a prim ary, loses the right to decide whether 
it shall be amenable to all or some o f the laws governing  
such elections. Surely the voluntary character o f a 
political party cannot authorize it, when it holds a 
primary, to observe on ly  the laws relating thereto which  
strike its fancy or suit its convenience.

Another aspect o f  the case that remains to be noticed 
is the fact that the Democratic primary in Georgia is 
controlling on the general election, so that any D e m o ­
crat denied a vote in that primary in reality is denied the 
right to have any voice at all in the election o f public 
officers. T h is  is im portant because it means that in fact 
the Democratic prim ary in Georgia is an integral part 
of the electoral process; in fact is the electoral process.

49



T h is  argument rests more particularly on U. S. v. 
Classic than on Smith v. Allwright. T h e  right o f  a 
N egro to vote was not involved in Classic, but the case 
did involve the question whether a prim ary is an election 
w ithin the provision o f the C on stitu tion  (A r t . 1, Sec. 4 )  
giving Congress power to regulate elections for Senators 
and Representatives. A n d  the C ou rt there held, as was 
said in Allwright (3 2 1  U . S. 7 6 3 )  that “ the primary 
and general elections”  were ‘fused’ “ into a single instru­
m entality for choice o f officers” , “ where the prim ary is 
by law made an integral part o f  the electoral m achinery.” 

B ut the C ourt recognized also in Classic that the 
primary m ight be in fact, as well as in law , an integral 
part o f the election machinery. It said (3 1 3  U . S. 318 . 
3 1 9 ) :

“ T h e  right to participate in the choice o f repre­
sentatives for Congress includes, as we have said, 
the right to cast a ballot and to have it counted at 
the general election whether for the successful candi­
date or not. W here the State law  has made the pri­
mary an integral part o f the procedure o f choice, 
or where in fact the primary effectively controls 
the choice, the right o f the elector to have his ballot 
counted at the prim ary, is likewise included in the 
right protected by Article I, § 2. A n d  this right of 
participation is protected just as is the right to vote 
at the election, where the prim ary is by law  made 
an integral part o f the election machinery, whether 
the voter exercises his right in a party prim ary which 
invariably, sometimes or never determines the ulti­
mate choice o f the representative. Here, even apart 
from  the circumstance that the Louisiana primary 
is made by law an integral part o f the procedure of 
choice, the right to choose a representative is in

50



fact controlled by the primary because, as is alleged 
in the indictment, the choice o f  candidates at the  
Democratic primary determines the choice of the 
elected representative. M oreover, we cannot close 
our eyes to the fact already m entioned that the 
practical influence o f the choice o f candidates at the 
primary m ay be so great as to affect profou ndly  
the choice at the general election even though there 
is no effective legal prohibition upon the rejection 
at the election o f the choice made at the primary  
and m ay thus operate to deprive the voter o f his 
constitutional right o f choice.”  (E m phasis ours.) 
T h e  adm itted facts in this case bring it squarely 

within the above pronouncem ent by the C ourt. T h e  
Democratic prim ary in Georgia “ effectively controls”  or 
“ determines”  the choice o f public officers.

Georgia is a one-party State. A n d  the party is the 
Democratic Party. T h e  party's overw helm ing strength 
in the State is indicated by the fact that in the eight 
presidential elections from  1 9 1 6  to 1 9 4 4  the popular 
vote for the Dem ocratic candidate exceeded the votes 
cast for all other candidates in proportions ranging from  
about 11 to 1 to 3 to 1, except in 1 9 2 8 , which this C ou rt  
perhaps can k n o w  judicially was a special case involving  
the Catholic and liquor questions, when it was only about 
one-third more (R . p. 17, par. 1 1 ) ;  and by the further 
fact that in the five presidential elections from  1 9 2 8  to  
1944 the Dem ocratic candidate carried 158 o f the State’ s 
159 counties, except that in 1 9 2 8 , the Republican candi­
date carried 4 9  counties, and in 1 9 3 2  the same candidate 
carried tw o. ( R ., p. 18, paragraphs 1 2 - 1 6 ) .

B ut there is more specific evidence than that, which  
relates directly to primaries. Since 1 9 0 8  the Democratic 
Party in Georgia has alw ays held a State-wide primary

51



biennially in the years in which by law  a general election 
is held in N ovem ber (R ., p. 2 7 , par. 2 6 ) .  A n d  no other 
party has held a State-wide prim ary during the past 40  
years (R ., p. 17, par. 1 0 ) .  M oreover, since 1 9 0 0 , the 
Democratic nominees for U nited  States Senator, Repre­
sentatives in Congress, G overnor and other Statehouse 
officers, nominated in those primaries, have invariably  
been elected in the ensuing general election (R .. p. 16, 
par. 7 ) .  A n d , true to form , all the Dem ocratic candi­
dates nominated in the primary here involved were 
elected in the general election in N ovem ber, 1 9 4 4  (R ., 
p. 17, par. 9 ) .

T h e  indisputable meaning o f these facts is that the 
Georgia Dem ocratic primary effectively controls and de­
termines the choice o f public officers in Georgia. N or  
is it questioned that Appellee is a D em ocrat; it is ad­
mitted that, at the time he offered to vote, he was a be­
liever in the tenets o f the Dem ocratic Party and was 
w illing to support the Dem ocratic nominee (R ., p. 16, 
par. 1 6 ) .

T h e  contention under these circumstances that A p ­
pellee was not denied the right to vote, because he could 
vote in the general election, is a pretense. T h e  general 
election in Georgia is nothing but a h o llo w  form . A n y  
Georgia Dem ocrat w h o is denied the right to vote in a 
Georgia Democratic primary is denied the right to vote 
at all. A n d  if the denial is on account o f  the voter’ s 
color, as it was here, it is a violation o f the Fifteenth  
Am endm ent.

T h u s  on tw o counts, by law  and in fact, under these 
tw o decisions, the Georgia Dem ocratic prim ary is an 
integral part o f the State’ s electoral process in “ a consti­
tutional democracy” , as the C ou rt says in S m ith  V. A l l - 
w r ig h t, whose “ organic law grants to all citizens a right

52



to participate in the choice o f elected officials w ithout re­
striction by  any State because o f race” .

TH E CROSS-APPEAL

T h e  prim ary involved in this case was for the n om i­
nation o f Dem ocratic candidates for U nited  States Sena­
tor, Representatives in Congress “ and various State o f ­
fices”  (R . p. 1 5 , par. 3 ) .

T h e  trial judge, in his opinion filed in the case, said 
that, since candidates for U nited  States Senator and 
Representatives were nom inated at this prim ary, “ it is 
unnecessary to pass on the question o f whether or not 
this action w ou ld  lie had the primary been one merely 
for the nom ination o f State or local officers”  ( R ., p. 4 2 ) .

T h is  was fo llow ed  up in the judgm ent, the second 
Conclusion o f L a w  deciding that the holding o f the 
primary o f Ju ly  4 , 1 9 4 4 , “ for the nom ination o f a 
candidate for U nited  States Senator and members o f the 
House o f Representatives, to be voted on in the general 
election in said year, was by  law  an integral part o f the 
electoral process o f  the State o f Georgia”  (R ., p. 7 2 ) .  
The subsequent holding in the Conclusions o f L a w  (R ., 
p. 7 3 )  refer to the prim ary as “ said prim ary” , necessarily 
meaning the prim ary referred to in the second Conclusion.

T h o u g h  the action was for damages and the ju d g ­
ment was for plaintiff in an am ount stipulated to be 
recoverable, in the event the C ou rt foun d for plaintiff 
(R ., pp. 16 . par. 6 ;  7 3 , 7 4 ) ,  plaintiff took the view  
that the C ou rt unduly and illegally limited his right by  
confining the applicability o f his ruling to a primary  
held only for national officers, and in that view filed the 
cross-appeal (R ., p. 8 4 ) .

Cross-appellee has filed a m otion to dismiss the 
cross-appeal on tw o  grounds: First, that there is nothing

53



in the judgm ent or Conclusions o f L a w  unfavorable to 
C ross-appellant; second, that Cross-appellant recovered 
damages in the am ount stipulated and that therefore the 
judgm ent awarded to him  all the relief he sought.

T h e  first ground is untenable. T h e  C ou rt did re­
strict Cross-appellant’ s right to a prim ary for national 
officers, as is show n by  the above citations to the Record. 
T h e  limitation was not only  in the o p in ion ; it was also 
in the judgm ent.

T h e  second ground is not so sim ple. F rankly, coun­
sel for Cross-appellant have had some dou bt whether a 
cross-appeal w ould  lie. B u t the lim itation, it is respect­
fu lly  submitted, is unquestionably w rong. There ought 
to be some w ay to reach the error, because it injuriously  
affects Cross-appellant’ s constitutional right. In future 
primaries for the nom ination o f candidates for State o f­
fices, this judgm ent could serve as a basis for further de­
nials o f Cross-appellant’ s right to vote. W o rse  still, per­
haps, since national and State officers are usually voted on 
in the same primaries, the right w ou ld  have to be granted 
as to one and m ight be denied as to the other, and un­
utterable confusion w ould  result. It is true that Cross­
appellant was awarded all the damages he could recover; 
but the vindication o f his right is quite as m uch involved 
in righting the w rong done, even though, as counsel for 
Cross-appellees suggest, the action is not for a declaratory 
judgm ent. A n d  there are authorities that seem to war­
rant the cross-appeal.

B ut first it is desired to insist on the wrongness o f the 
lim itation imposed by the judgm ent.

N o  distinction can la w fu lly  be made between pri­
m ary elections for members o f Congress and primary 
elections for State officers. T h e  Fifteenth Am endm ent 
says that the right to vote shall not be denied or abridged

54



by any State on account o f  race or color, and gives C o n -  
gress pow er to enforce the am endm ent by  appropriate 
legislation. T here is no lim itation in the am endm ent to  
the right to vote for members o f  Congress. It is a general 
prohibition and cannot logically be held to apply only so 
far as the election o f Senators and Representatives is con­
cerned.

Congress enacted 8 U . S. C . A .  § §  3 1 , 4 3 , as the ap­
propriate legislation to enforce the am endm ent. T h e  
statute itself makes no such distinction. Section 31 says 
that all citizens are entitled to vote at a n y  election  in any  
State, territory, district, county, city, etc.

S m ith  v . A l l w t i g h t  makes no such distinction. T h e  
election there involved was a State-w ide prim ary at which  
State officers as w ell as members o f  Congress were n o m i­
nated. T h e  C ou rt says in its opinion in that case ( 3 2 1  
U. S. 6 6 4 , 6 6 5 ) :

“ I f  the State requires a certain electoral p ro­
cedure, prescribed a general election ballot made up  
of party nominees so chosen and limits the choice 
o f the electorate in general elections fo r  state o ffices , 
practically speaking, to those whose names appear 
on such a ballot, it endorses, adopts and enforces 
the discrimination against Negroes, practiced by  a 
party entrusted by  T e x a s  law  w ith  the determina­
tion o f the qualifications o f participants in the pri­
mary . . . W h e n  primaries become a part o f the party  
machinery for choosing officials, state and n ation a l, 
as th e y  h a v e  here, the same tests to determine the 
character o f discrimination or abridgement should  
be applied to the prim ary as are applied to the 
general election.”
In U . S. v . C lassic, it is true, only  a primary to  

nominate a representative in Congress was involved.

55



B ut the case is no authority for the proposition that 
protection o f the constiutional right to vote does not 
extend to primary elections to nom inate State officers. 
It does not appear from  the report o f  the case that the 
primary was held to nom inate any other officer than a 
representative in Congress; presum ably no State officer 
was voted on at all. B ut certainly the on ly  frauds for 
which the defendants were indicted were frauds in a 
congressional election.

In Myers v. Anderson, 2 3 8  JJ. S. 3 6 8 ,  59  L. ed. 
1 3 4 9 ,  which was brought under 8 U. S. C. A. §§ 31, 
4 3 , to recover damages for denying a N egro  the right to 
vote in a municipal election in M arylan d , the court held 
that the right to vote secured by  the Fifteen thAm end- 
ment extends to m unicipal elections. I f  it does, certainly 
it w ould  extend to primary elections to nom inate State 
officers, if it extends to primaries at all.

In Nixon v. Herndon, cited ante, in which it was 
held that a statute m aking Negroes ineligible to partici­
pate in primaries was a denial o f  equal protection o f the 
laws, the primary involved was one for nom ination of 
candidates for Senator and Representatives in Congress 
“and State and other officers ”

In Nixon V. Condon, cited ante, wherein the court 
ruled that a statute which delegated to the State Execu­
tive Com m ittee power to fix the qualifications for voters, 
and a resolution o f such a committee excluding Negroes 
from  primaries, together constituted a denial o f  equal 
protection, there is not a thing to show  that the primary 
involved was to nom inate candidates for members of 
Congress only.

In Kellogg v. W armouth (C . C . La.) Fed. Cas. No. 
7, 6 6 7 ,  which was a bill to preserve evidence to enable the 
plaintiff to prosecute an action for damages for the sup­

56



pression o f votes on account o f race, color and previous 
condition o f servitude, the court held that 8 U . S. C . A .  
§ 31 applied to the election o f a State governor.

In L a n e  v . W i l s o n , 3 0 7  U . S. 2 0 8 , 83 L. ed. 1 2 8 1 ,  
it was held that the protection o f the Fifteenth A m en d ­
ment and the enforcing statutes extended even to the right 
to register in a State, and not alone to the right actually 
to vote . T h e  purpose o f registration is to qualify  the 
voter to vote in all elections. T h a t  was the purpose o f  
the O klahom a statute in this case. I f  the protection o f  
the amendment and the enforcing statutes extends to  
the right to register for all elections, including Federal 
elections, it cannot be said w ith any sort o f logic that 
it does not extend to prim ary elections for the nom ination  
of these officers.

N o  case has been fou n d which makes the distinction  
made in this case, and it is believed that none can be. 
Such distinction narrows the Fifteenth A m endm ent and 
the enforcing statutes beyond their plain intent. T h e  
prohibition o f the am endm ent is against denial o f the 
right to vote on account o f race or color. T h e  statute 
(§  3 1 )  construes that right to be the right to vote at 
any election. A n d  § 4 3  gives a right o f action to any 
person w h o by  any State law  is subjected to deprivation  
of any rights, privileges or im munities secured by the 
Constitution and laws, w hich necessarily includes the 
right guaranteed by  the amendment and by § 3 1 .

It just cannot be that a N egro has a constitutional 
right to vote in primaries for nom ination o f Senators and 
Representatives and does not at the same time have an 
equal right to vote in primaries for nom ination o f State 
officers.

T h e  States have a right to regulate the franchise, but 
only, as the C ou rt said in the A llw r ig h t  case, as their “ ac­

57



tion m ay be affected by the prohibitions o f the United 
States C on stitu tion .”  T h e  right guaranteed by  that 
Constitution is the right to vote, not only  at elections for 
members o f  Congress, but at any elections; and that in­
cludes all primaries.

T h e  implied lim itation in the judgm ent, therefore, 
is w rong and a cross-appeal lies to correct it. It is of 
course true that a party w h o got all he asked for cannot 
appeal.

B ut there is a fam iliar line o f  authorities holding 
that an appellee, not him self appealing, m ay not attack 
the decree, w ith a view either to enlarging his o w n  rights 
thereunder or o f lessening the rights o f  his adversary; he 
cannot go beyond supporting the entire decree, unless he 
cross-appeals.

U. S. v. American Railway Express, 265 U. S. 
425, 68 L. ed. 1087.

Landtam v. Jordan, 203 U. S. 56, 51 L. ed. 88.
Mt. Pleasant v. Beckwith, 100 U. S. 514, 25 

L. ed. 699, 702.
Chittenden v. Brewster, 69 17. S. 191, 17 L. ed. 

839.
LeTulle v. Scofield, 308 U. S. 415, 60 Sup. Ct. 

313, 84 L. ed. 355.
T h is  C ou rt itself has held that cross-appeals must 

be prosecuted like other appeals and that an assignment 
o f error by an appellee cannot be considered unless an 
appeal has been regularly taken b y  him .

B. & L. Assn. v. Logan, 66 Fed. 827.
Moiler v. Herring, 255 Fed. 670.

Under this line o f authorities, Cross-appellant can­
not raise the question here made w ith out an appeal. 
T h e  C ou rt cannot hear him  unless he com plains.

B ut the answer m ay be made to these authorities

58



that they apply only  in a case where the cross-appellant 
got less than he asked for and that here this C ross-appel­
lant takes everything he could have taken in this action.

It is a sound answer if it is true that a m oney ju d g­
ment for all plaintiff could have recovered in an action 
for damages is inevitably and alw ays all he could have 
gained in the action. B u t that is not necessarily so. A n  
injustice m ay have been done him  even in such a case 
which he is entitled to have corrected. T h u s  in an early 
case the Supreme C ou rt said:

“ Plaintiff also m ay bring error to reverse his 
ow n jud gm ent, w h ere  in ju stice has been  d o n e  h im , 
or where it is for a less sum  than he claim s.”  
(E m phasis ours.)

U . S. v . D a sh iel, 7 0  U . S. 6 8 8 ,  7 0 1 ,  18 L . ed.

2 6 8 .
Injustice has certainly been done this C ross-appel­

lant; for while he has all the m oney he asked for, he has 
yet only h alf a right to vote. A n d  it is certainly inferable 
— legally inferable— from  the small am ount he agreed to  
accept as damages ( R . ,  p. 16, par. 6 )  that he was much  
less interested in m oney than in his right to vote.

Another authority o f the same nature is a decision 
by the Circuit C ou rt o f  Appeals for the Eighth Circuit, 
wherein a distinction is made between error prejudicial 
to a p a rty  and n o t receiving all he is en titled  to . Said the 
Court in that case:

“ T h a t  a party m ay appeal from  a judgm ent 
in his favor w h e n  there has been  so m e  error p r e ju ­

dicial to  h im , or he has not received all he is entitled 
to, has quite generally been held by the courts, and 
there is no sound reason otherwise. T h e  judgm ent 
m ay be for a less am ount than appellant was entitled 
to, or there m a y  be gra ve irregularities or errors

59



which have prevented appellant from  receiving the 
fu ll relief to which he is entitled. W h ile  these and 
other exceptions exist, the general rule is that a 
party cannot appeal from  a judgm ent in his favor.” 
(Em phasis ours.)

H o u ch in  Sales C o . v . A n g e r t  (8  C . C . A . ) 11 
F . 2 d  115 , 1 1 9 .

B ut whether a cross-appeal is or not technically al­
lowable, it is respectfully suggested that the trial judge’s 
error ought to be, and can be, corrected. It m ay be that 
this can be done by the exercise o f the broad jurisdiction 
o f the C ou rt to correct errors on appeal. T h e  right view 
of the matter m ay be that suggested b y  M r. Justice Bran- 
deis in U . S. v . A m erica n  R a ilw a y  E x p r e ss  w hen, after 
having stated the rule that a party cannot enlarge his 
ow n  rights or lessen his adversary’ s w ith out appealing 
(2 6 5  U . S. 4 3 5 ) ,  he said:

“ B u t it is likewise settled that the appellee, may, 
w ithout taking a cross-appeal, urge in support o f a 
decree any matter appearing in the record although  
his argument m ay involve an attack upon the reason­
ing o f the lower court, or an insistence upon matter 
overlooked or ignored by it.”
In reality this cross-appeal only  attacks the reason­

ing o f the trial judge and insists upon matter overlooked 
or ignored by him , not for the purpose o f reversing the 
judgm ent, but in order to make it accord w ith the law 
of the case; in which event the error can be corrected 
w ithout the cross-appeal. There is no attack on the 
judgm ent, but an effort to support it by  perfecting it.

CONCLUSION

In stating the position o f the Appellee in this case, 
we can do no better than to adopt the w ords used by

60



Mr. Justice C ard ozo  in stating the contention o f the 
plaintiff in N i x o n  v . C o n d o n  ( 2 8 6  U . S. 8 4 ) .  It is, 
said the Justice:

‘T h a t  parties and their representatives have be­
come the custodians o f  official pow er; and that if 
heed is to be given to the realities o f  political life 
they are n ow  agencies o f  the State, the instrument 
by which governm ent becomes a living thing. In  
that view , so runs the argument, a party is still free 
to define for itself the political tenets o f its members, 
but to those w h o profess its tenets there m ay be no 
denial o f  its privileges.”
N or can we state better than the same great Justice 

stated it in the same case the principle and test to be ap­
plied in determining the conclusion to be arrived at on 
that contention. H is statement o f  this was as fo llow s  
(286  U . S. 8 9 )  :

“ W hether in given circumstances parties or their 
committees are agencies o f  governm ent w ithin the 
14th or the 15th  A m endm ent is a question which  
this court w ill determine for itself. It is not con­
cluded upon such an inquiry by decisions rendered 
elsewhere. T h e  test is not whether the members o f  
the Executive C om m ittee are the representatives o f  
the State in the strict sense in which an agent is the 
representative o f  his principal. T h e  test is whether 
they are to be classified as representatives o f the State 
to such an extent and in such a sense that the great 
restraints o f  the C onstitution  set limits to their 
action.

“ W ith  the problem  thus laid bare and its essen­
tials exposed to view , the case is seen to be ruled by  
N i x o n  v . H e r n d o n  . . . Delegates o f the State’ s 
power have discharged their official functions in

61



such a w ay as to discriminate invidiously between 
white citizens and black . . . T h e  Fourteenth 
Am endm ent, adopted as it was w ith  special solici­
tude for members o f the N egro race, lays a duty 
upon the court to level by its judgm ent these bar­
riers o f color.”

T h e  principles so stated there are applicable here, 
but on a broader scale. Appellee is a D em ocrat. He 
sought to vote in a Democratic prim ary in Georgia. He 
was denied the privilege solely because he was a black 
m an. T h e  denial was by county party authorities, who 
hold their offices under a State statute, and was by  virtue 
o f a rule duly adopted by State party authorities who 
were themselves delegates o f  the State’ s official power. 
T h e  election itself, regulated by statute and controlling 
the result w ith inevitable precision, was by  law  and in 
fact an integral part o f the State’ s electoral process. The 
refusal to allow  Appellee to vote, totally  depriving him 
o f his right to cast a ballot, was by representatives o f the 
State and was both a denial by  the State o f  the equal 
protection guaranteed by the Fourteenth Amendment 
and o f the right to vote, regardless o f  race or color, guar­
anteed by the Fifteenth.

T h e  contention on this record that A ppellee’ s right 
to vote is unimpaired by his exclusion from  the primary 
o f July 4, 1 9 4 4 , is specious, ignoring the realities o f po­
litical life and m aking a m ockery o f the principles and 
practices o f democracy. It cannot be otherwise now 
that the Supreme C ourt in C lassic  and A llw t ig h t  has cut 
through the legalism o f the earlier decisions and an­
nounced “ as a postulate that the right to vote in such a 
primary for the nom ination o f candidates w ith out dis­
crimination by the State, like the right to vote in a gen­
eral election, is a right secured by the C on stitu tion .”

62



A  bare option  to elect whether action shall be taken 
by party authorities cannot be held to destroy “ the great 
restraints o f  the C on stitu tion ”  that set limits to such 
action when it is taken under exercise o f  the option to 
take it. A  party prim ary, recognized, regulated and 
protected by  law , whatever its origin, is an essential part 
of the State's election machinery and the party authorities 
conducting it are so far representatives o f  the State that 
exclusion from  it o f  a party member, solely on account 
of his color, is a direct and palpable violation o f the 
Constitution by the State.

T h a t is w hat the C ou rt is asked to hold , and it is no 
more, no less, than the Supreme C ou rt has held in S m ith  
v. A llw tig h t .

Respectfully submitted.

Address:
Persons Building HARRY S. STROZIER
Macon, Georgia

Address:
Columbus Bank 8  Trust Co. OSCAR D. SMITH

Building
Columbus. Georgia

Attorneys for Appellee and 
Cross-Appellant.

63



A P P E N D I X  A

GENERAL GEORGIA S T A T U T E S  R E LA TIN G  
T O  PRIMARIES M A T E R IA L  PORTIONS  

OF W HICH ARE N O T  Q U O TE D  
IN APPELLANTS’ BRIEF.

Ga . A n n . Code Su p p ., §34-409, A cts 1943, p. 353:
" I n  any primary election no one shall be entitled to 

vote therein unless his or her name shall appear on the 
list certified to by the board o f registrars at least 10 days 
before the date fixed for the holding o f said prim ary, or 
upon presentation by said voter o f  a certificate signed 
by a m ajority o f the county registrars stating that the 
voter’s name was om itted from  the certified list o f voters 
by inadvertence or mistake, and fhat said voter is in fact 
qualified and entitled to vote in said prim ary election.” 
Ga. A nn . Code Su p p ., § 410, A cts 1943, p. 353:

" N o  one shall be entitled to vote upon the presenta­
tion o f any certificate issued by  any tax collector or other 
officer unless the requiremnts o f the preceding section 
are complied w ith .”
Acts 1937-38, Ex. Sess., p. 371:

" A t  all elections hereafter held in all municipalities 
and cities having a population o f 2 0 0 ,0 0 0  or more ac­
cording to the last or any future Federal census, in the 
State o f Georgia, whether regular, special, prim ary, or 
other elections,”  voting machines m ay be used under de­
tailed provisions for such use.
Ga. Code of 1933 and A n n . Code, § 34-1907:

" N o  printer, publisher or other person engaged to 
print or prepare election ballots, shall deliver or furnish 
a ballot or ballots, or any likeness o f the same, to any 
person other than the officials or party authorities desig­
nated in this Chapter to provide and furnish ballots, or 
on their written order; and no person engaged by such

64



printer or publisher or other person to aid or assist in 
the printing or preparation o f said ballots shall retain 
or deliver or furnish a ballot or ballots o f  the likeness 
or form o f the same to any person other than said officials 
or party authorities, or on their written order. N or  
shall any person, w h o having in any manner procured 
an official ballot or likeness thereof, furnish, deliver or 
give the same to anyone other than one o f said officials, 
said party authorities or an election m anager.”
Ga. Code of 1933 and A n n . Code, § 34-2001:

" A l l  candidates for G overnor, Statehouse officers, 
Justices o f  the Supreme C ou rt, Judges o f the C ou rt o f  
Appeals, and for U nited  States Senator, shall, w ithin  
20 days, from  the date o f holding the election or primary  
election at which they shall be candidates, file w ith  the 
Comptroller General an itemized statement, under oath, 
of all campaign expenses incurred by  them . . . and shall 
at the same time publish said sw orn statement in some 
newspaper o f general circulation published at the C apitol 
of the State.”

T h e  section makes the same provision respecting 
candidates for other State and county offices, except that 
reports m ust be made to the clerk o f the superior court 
and must be published in a newspaper in the county or 
district o f the candidacy.
Ga. Code of 1933 and A n n . Code, § 34-2002:

“ N o  person violating the provisions o f the pre­
ceding section shall be declared the nominee o f his party .”  
Ga. An n . Code Su p p ., § 34-2003. A cts 1943. p. 441:

“ N o  candidates for nom ination to any office in any 
primary held in this State, and no candidate for any office 
in any general, or special, election, in this State shall 
expend, or agree to expend, more than $ 2 5 ,0 0 0  in his 
campaign for nom ination , or in any campaign for elec-

65



tion in either a general, or special, election.”
Ga . Ann. Code Su p p ., § 34-2004, Acts 1943, p. 441:

“ A ll candidates shall prepare and file w ith  the 
C om ptroller General an item ized statement, under oath, 
as prescribed in section 3 4 -2 0 0 1 ,  o f  all m oney expended 
in such campaign by him self, or his agents, and showing 
the purposes for which used and source from  which 
such funds were derived,”
Ga . Ann. Code Su p p ., § 34-2005, A cts 1943, p. 441:

“ A n y  person w h o shall w ilfu lly , or know ingly, 
violate any provisions o f  this law  ( § §  3 4 -2 0 0 3  to 34- 
2 0 0 5 )  shall be subject to impeachment from  the office 
which he holds, or is elected.”
Ga . A n n . Code Su p p ., § 342001a, A cts 1943, p. 480:

“ T h e  hours for holdin g all general, special, and 
primary elections in the State o f Georgia shall be from  
seven o ’ clock A . M . to six o ’ clock P. M .,  according to 
the legal time prevailing in the State o f Georgia, at all 
o f the polling places where said elections are held. The  
provisions o f this section shall not apply to municipal 
elections.”
Ga . Code of 1933 and A n n . Code, § 34-3202:

“ Before any ballots are received at such primary 
elections, and im mediately before opening the polls, 
the managers shall open each ballot b o x  to be used in 
the election, and shall exhibit the same publicly, to show  
that there are no ballots in the b o x . T h e y  shall then 
close and lock or seal the b o x , except the opening to 
receive the ballots, and shall not again open the same 
until the close o f the election. T h e y  shall keep a list of 
voters voting at the election, and shall, before receiving 
any ballot, administer to the voter an oath, provided the 
voter’s vote is challenged, that he is duly qualified to vote 
according to the rules o f the party, and according to the

66



election law s o f this State, and that he has not voted be­
fore in such prim ary election then being held. A t  the 
close o f  the election the managers shall proceed publicly  
to count the votes and declare the result. T h e y  shall 
certify the result o f  the election, and transmit the certifi­
cate w ith  the tally sheet or p o ll list, together w ith the 
ballots cast, and all other papers relating to such primary  
elections, w ithin the time and in the manner prescribed 
in this C hapter.”
Ga. Code of 1933 and A n n . Code, § 34-3213:

“ In the event that, after such consolidation o f all 
the county unit votes throughout the State, it shall be 
made to appear that in the contest for any one or more 
of said offices, no candidate has received a m ajority o f all 
the county unit votes throughout the State, upon the 
basis as above set forth , and it shall further appear that 
there are more than tw o  candidates for any one or more 
of said offices, such political party shall hold a second 
primary election throughout the State on the first 
Wednesday in October fo llo w in g  such first primary elec­
tion, and in such second prim ary election on ly  the tw o  
candidates ascertained to have received the highest n u m ­
ber o f county unit votes at the first prim ary election for  
any particular office shall be voted for . . . ”

T h e  procedure in this section, which is not quoted  
herein, is the same as that provided in § 3 4 -3 2 1 2  ( A p ­
pellants’ brief, pp. 1 0 4 -1 0 6 ) .
Ga. An n . Code Supp., § 34-3219. A cts 1939. p. 311:

“ Every political prim ary election held by  any p o ­
litical party, organization or association for the purpose 
of selecting candidates for the office o f  State Senator from  
any o f the senatorial districts o f this State, as provided  
for by the C on stitu tion , shall be held only  in the county  
whose turn it is to furnish the nominee o f such party

67



as a candidate for the office under the rotation system 
as same was o f force prior to January, 1 9 3 6 .”
Ga. Ann. Code Supp., § 34-3220, Acts 1939, p. 311:

“ T h e  candidate entitled to said nom ination as the 
result o f the primary under the rules and regulations pre­
scribed by the executive committee or other party organi­
zation o f the county whose turn it is to furnish such 
nominee under such rotation system shall be the nominee 
o f such party for State Senator from  any such district 
for the ensuing term and no other person shall qualify 
or have his name placed upon the ballot as the nominee 
o f such party for said office.”
Ga . Ann. Code Supp., § 34-3221. Acts 1939, p. 311:

“ Unless the executive committee or other party 
organization o f the county whose turn it is to furnish 
such nominee shall, by resolution, disclaim the right 
o f the members o f such party in such county to furnish 
such nominee, no county or the members o f any such 
party in any such county shall furnish such party nomi­
nee for the office o f State Senator at tw o successive elec­
tions for State Senator in said district, or after having 
furnished such nominee, again do so until every county in 
such district has furnished the nominee o f such party in 
its turn: Provided, that notw ithstanding any other pro­
vision o f this law  in every senatorial district composed 
o f counties having equal representation in the House of 
Representatives that no such county shall furnish the 
nominee for State Senator in said district at tw o suc­
cessive elections unless the same is consented to by the 
executive committees o f each o f the other counties in said 
district.”
G a . A nn . Code Su p p ., 34-3222, A cts 1932, p. 311:

“ For the next general election thereafter held for 
State Senator in the various senatorial districts o f  this

68



State, the nominee o f any political party, organization  
or association as a candidate for such office shall come 
from the county whose turn it is to furnish such nominee 
under the rotation system as recognized and in force in 
such senatorial district, prior to January 1, 1 9 3 6 .”
Ga. Code of 1933, and A n n . C ode, § 34-3301:

“ A n y  voter, when required by his regular business 
and habitual duties to be absent from  the city or county, 
ward or district in which he is registered, m ay vote by  
registered m ail: Provided, that he shall give notice in 
writing o f such intention to the registrars o f his county, 
not less than 3 0  days nor more than 6 0  days prior to the 
primary or general election in which he m ay desire to 
participate.”
Ga. Ann. Code Supp., § 34-3301. Acts 1943, p. 228:

“ A n y  voter, when required to be absent from  the 
city or county, ward or district in which he is registered, 
may vote by registered m ail: provided, that he or some 
member o f his immediate fa m ily ,— v iz ., husband or wife, 
father or m other, sister or brother, or son or daughter—  
shall give notice in w riting o f such intention to the 
registrars or the ordinary o f his county, not less than 10  
days nor more than 6 0  days prior to the primary or 
general election in w hich he m ay desire to participate.”  
Ga. Ann. Code Su p p ., § 34-3309. A cts 1941. p. 367:

“ It shall be the duty o f the ordinary o f each county, 
at the expense o f said county, to furnish the registrars o f  
said county w ith  a sufficient number o f blank ballots, 
each properly sealed in an envelope marked ‘ballot w ith ­
in,’ and take their receipt for same. W ith in  five days 
subsequent to the election, the registrars shall return to  
the ordinary all unused ballots in their original sealed 
envelopes and a list o f the voters w h o have been fu r­
nished ballots as provided in the Chapter. Every o f-

69



ficer o f  this State or o f  any political party, organization  
or association whose duty it is to furnish official ballots 
or blank form s necessary for any prim ary or general 
election shall furnish the same to the ordinary o f each 
county at least 15 days prior to the date fixed for holding 
said election."

Ga . Code of 1933 and A n n . Code, § 34-9922:
‘A n y  manager o f a primary election w h o shall be 

guilty o f w ilfu lly  violating any o f the duties and obli­
gations devolving upon him  as such manager, shall be 
punished as for a m isdem eanor."

Ga . Code of 1933 and A n n . Code § 34-9923:
"A n y  manager o f a prim ary election or clerk of 

the superior court, w h o shall violate the provisions of 
sections 3 4 -3 2 0 4  to 3 4 -3 2 0 9  or 3 4 -3 2 1 1 ,  relating to 
primary elections, shall be guilty o f  a m isdem eanor."
Ga . Code of 1933 and A n n . Code, § 34-9924:

"A n y  manager o f a prim ary election, w h o shall be 
guilty o f fraud or corruption in the managem ent o f  an 
election, shall be punished as for a m isdem eanor."
Ga . Code of 1933 and A nn . C ode. § 34-9925:

“A n y  voter at a primary election, w h o  shall, if chal­
lenged, swear falsely in taking the prescribed oath, or 
shall personate another and take the oath in his name 
in order to vote, shall be guilty o f perjury, and shall 
be punished as for perjury.”

Ga . Code of 193 3 and A nn . C ode. § 34-9926:
“ A n y  person w h o shall either buy or sell, or offer to 

buy or sell, or be in any w ay concerned in buying or sell­
ing, or contribute m oney for the purpose o f buying a 
vote in any primary election, whether the election shall 
be for nominees for State, county, m unicipal, or Federal 
office, shall be guilty o f a m isdem eanor."

70



Ga. Code of 1933 and A n n . Code. § 34-9927:
" I n  case o f  a prosecution under the preceding sec­

tion, any person participating in a violation o f the pro­
visions o f  the same shall be both competent and com ­
pellable to testify, except where he him self is on trial 
as is provided in prosecutions for violation o f gaming  
laws.”
Ga. Code of 1933 and A n n . Code, § 34-9928:

“ A n y  person w h o shall vote at a primary election 
more than once or at more than one polling place, shall 
be guilty o f  a m isdem eanor.”
Ga. Ann . Code Su p p ,. § 34-9934, A cts 1941. p. 429:

“ A n y  person w h o at any prim ary election or elec­
tion o f any kind, by  ballot, w ithin this State, shall sign 
the voters identification book , for the purpose o f fraudu­
lently obtaining a ballot, representing him self or herself 
to be a different person and representing that he or she 
is the person whose name he or she signs whether said 
person so impersonated be living, deceased or a fictitious 
person, shall be guilty o f  forgery and punished as for a 
misdemeanor.”
Ga. A nn . Code Su p p ., § 34-9935, A cts 1941, p. 432:

“ A n y  person or official violating any o f the pro­
visions o f sections 3 4 -3 2 2 3  to 3 4 -3 2 3 6 ,  relating to  
recount o f  prim ary election ballots, shall be held to be 
guilty o f  misdemeanor, and upon conviction thereof 
shall be punished as for a m isdem eanor.”
Ga. A n n . Code Su p p .. § 34-9933, A cts 1939. p. 309:

“ A ll  penal laws o f the State o f Georgia relating to 
illegal practices in general elections are hereby extended 
to all primary elections held for State, county, or m unici­
pal offices in the State o f  G eorgia.”
Acts 1944. Ex. Sess., p. 2, § 1:

“ T h e  purpose o f this A ct is to make provision for 
Georgia men and w om en in the m ilitary service o f the

71



U nited States to participate in C o u n ty , State, and 
N ational Elections, and in Party Primaries in liberalizing 
the statutes o f this State and by  m aking provision for 
such participation.”
A cts 1944, Ex. Sess.. p. 6, § 14:

“ T h e  member o f the m ilitary m arking and casting 
the said ballot in said primary election shall sign the 
same on the back thereof, place the ballot in an envelope 
addressed to the C o u n ty  Registrars o f  the C o u n ty  in 
which he is a registered voter, write on the envelope the 
w ord “ B allot”  and m ail the same. Attached to the ballot 
furnished by the C o u n ty  Registrars for use o f  the member 
o f the m ilitary in voting in said party prim ary election, 
shall be instructions as to the signing, m arking, voting 
and return o f the same. Such m ilitary voter in return­
ing the aforesaid ballot shall not be required to post the 
same by registered mail or to have the same certified or 
notarized by any person or persons.”
A cts 1944, Ex. Sess.. p. 6, § 15:

“ W h en  duplicate ballots are furnished to military 
voters in general or primary elections, only  the first 
ballot received shall be counted.”
A cts 1944, Ex. Sess., p. 6, § 16:

“ It shall be the duty o f the O rdinary in case of 
general elections, and the duty o f  the C o u n ty  Registrars 
in case o f primary elections, to receive all ballots from 
members o f the m ilitary up to and including the election 
hours o f the day o f election and to keep the said military 
ballots in a safe and private place unopened until the day 
o f the election. U p o n  receipt o f the ballot by the 
Ordinary or the C o u n ty  Registrars, as the case m ay be. 
the said official shall write the date o f the receipt o f the 
said m ilitary ballot on the envelope containing same. 
O n the day o f the: election such official shall, in the

! 72



presence o f the election managers, open the envelope con­
taining the m ilitary ballot, determine the name o f the 
voter casting the same and record the receipt o f  his said 
ballot, and the date received, in the permanent record 
book maintained by the said official for such purpose. 
The election managers shall then determine from  the list 
of registered and qualified voters the eligibility o f  the 
military voter in question to cast the said ballot and, if 
found properly registered and qualified, the Ordinary  
or the C o u n ty  Registrars, as the case m ay be, shall deposit 
the ballot in the regular ballot b o x  w ith the approval o f  
the election m anagers.”

Acts 1944. Ex. Sess., p. 7, § 18:

‘ ‘There is hereby created a State W a r  B allot C o m ­
mission composed o f  the G overnor, the President o f the 
Senate, the Speaker o f the H ouse, the A ttorney General, 
and the Secretary o f  State, which said Com m ission is 
authorizd and empowered to make any and all provisions 
and regulations necessary to effectuate the operation o f  
this A ct and to cooperate w ith Federal authorities in 
facilitating and expediting the handling o f registration 
and balloting by  m ilitary voters. T h e  said W a r  B allot 
Commission is also directed to cooperate w ith State, 
County and political party officials in all matters relating 
to the registration and voting  o f members o f  the military  
in elections and party primaries. T h e  said C om m ission  
is also empowered and authorized to settle and determine 
all questions o f  law , procedure and regulation governing  
the registration and voting o f persons in the m ilitary.”  

Acts 1944. Ex. Sess., p. 7, § 20:

“A ll  expenses in connection w ith the m ailing o f  
registration cards and ballots to members o f  the military  
as provided in this A ct shall be borne by the counties.”

73



A P P E N D I X  B

SPECIAL GEORGIA STATU TES RELATING TO 
PRIMARIES IN PARTICULAR COUNTIES 

Baker County, Acts 1916, p. 344, § 1:
“ A ll  primary elections held in Baker C o u n ty  for 

the nom ination o f all Federal, State, county and munici­
pal officers, shall be held and conducted under and ac­
cording to the fo llo w in g  stipulations, rules and regula­
tions: For the purpose o f holding all Federal, State and 
county primary elections in said county o f Baker, the 
ordinary, county commissioners, or other authorities hav­
ing charge o f the financial affairs o f  the county shall pre­
pare in each voting precinct in the various districts of 
the county, suitable booths, to be prepared in sufficient 
numbers to reasonably accommodate the electors casting 
ballots in said precinct, and said booths shall be so ar­
ranged that electors cannot be observed by  each other in 
preparing the ballots to be cast in said prim ary elections.” 
D eKalb County, Acts 1943, pp. 944, 945, § 2:

A ll political parties, organizations or associations, 
in D eK alb  C o u n ty , State o f Georgia, shall nom inate their 
candidates for all offices which are n o w , or which may 
hereafter be, elective by the people o f  said county, by 
primary elections; which said prim ary elections shall be 
held in each year in which there is to be a general election 
for county officers, on the same day in said year which 
may be fixed by the State or central executive committee, 
or other governing body o f such political party, organiza­
tion or association, for the nom ination o f candidates for 
State H ouse officers o f  said State; provided, how ever, that 
whenever any date m ay be fixed by  law for the holding 
o f the primary elections for the nom ination for State 
House offices, by political parties, organizations or associ­
ations, said primary elections for the C o u n ty  o f  DeKalb

74



shall be held on the date so fixed by  la w .”
Dodge County. Acts 1914, p. 263, § 1:

T h e  first part o f  this section is identical w ith Acts 
1916, p. 3 4 4 , relating to Baker C o u n ty , quoted ante, 
this A pp en dix .
Dodge Cou nty , A cts 1943, p. 951, § 1:

“ Said (c o u n ty ) Com m issioner shall, at least ten 
days before the day o f holding any primary election in 
Dodge C o u n ty  for the election o f county or Statehouse 
officers, cause to be published once in the official organ 
of D odge C o u n ty  a list o f  the voters registered and 
qualified to vote in such election; and w ithin ten days 
after the votes have been consolidated in such election 
likewise publish a list o f the electors w h o voted in such 
election; w ith  the cost o f  such publication at regular 
fees o f legal advertising to be paid out o f the county  
treasury as other expenses o f the county are paid .”
Early County . A cts 1924, p. 329, § 1:

“ In every political prim ary election held by any 
political party, organization or association for the pur­
pose o f choosing or selecting candidates for office as com ­
missioners o f Early C o u n ty , that is, members o f the 
Board o f C o u n ty  Com m issioners o f Early C o u n ty , one 
of such five commissioners shall be elected from  each o f  
the five districts kn ow n  respectively as the northeastern, 
northwestern, southeastern, southwestern and m iddle dis­
tricts, as designated and defined in the A cts o f 1 9 1 7 , 
page 3 4 9 ;  provided, however, that each o f said com m is­
sioners shall be elected in such primary election by a 
majority vote o f the qualified voters o f the district in 
which he resides, and the person receiving the highest 
number o f votes cast in such election from  his said district 
shall be declared to be elected commissioner in such pri­
mary election from  such district ”

75



Grady County , A cts 1920, p. 552, § 1:
T h is  section is identical w ith A cts 1 9 1 6 ,  p. 

3 4 4 , relating to Baker C o u n ty , quoted ante, this A p­
pendix.
Lamar County, A cts 1933, p. 600, § 1:

“ A ll  candidates o f any political party for county 
offices in Lam ar C o u n ty  shall be nom inated at the same 
time, and at the same primary held by  any such political 
party, for the nom ination o f candidates for Governor 
and members o f the General A ssem bly,
M eriwether County . A cts 1937-38, Ex. Sess., p. 854, § 1: 

“ A n y  person seeking to qu alify  as a candidate in 
any primary election for representative in the Genera! 
A ssem bly from  M eriwether C o u n ty  shall specify the 
particular candidate or incum bent w h om  he desires to 
oppose or succeed. T h e  candidate receiving a plurality 
o f the votes cast for candidates for such office shall be 
declared the nominee th erefor."
M itchell  County , A cts 1927, p. 632, § 1:

Said C o u n ty  o f M itchell is hereby divided into five 
districts, for the purpose o f selecting county commis­
sioners therefrom ; . . . and there shall be elected one 
commissioner from  each o f said districts, m aking five 
commissioners in all for said cou n ty ; said election for 
said commissioners shall be held at the regular time for 
both nom inating and electing an ordinary in and for said 
C ou n ty  o f M itchell, and the term o f office o f each and all 
o f said commissioners shall be equal w ith  that o f the 
ordinary’ s o f  said cou n ty ; and no person shall be eligible 
to vote for any commissioner in any prim ary or general 
election, unless he be qualified to vote for the ordinary 
o f said county in regular election for the nom ination or 
election o f ordinary, and all o f the qualified voters resid­
ing in the C o u n ty  o f M itchell shall be allow ed and quali-

76



fied to vote for the commissioners o f each o f said districts 
hereinbefore laid out and prescribed, in accordance w ith  
the rules and law  n o w  o f force governing the election o f  
county officers; it being the intention o f this portion o f  
this section to provide that the several county com m is­
sioners shall be selected from  districts, as hereinbefore 
prescribed, but that said county commissioners shall be 
voted upon and elected from  the county at large, by  the 
qualified voters o f  M itchell C o u n ty .”
Muscogee Cou nty , A cts 1925, p. 721:

“ Section 1. T h e  C hairm an or C h ief Executive o f ­
ficer o f the executive com m ittee o f every political party  
in Muscogee C o u n ty , State o f  Georgia, shall be elected 
by direct popular vote at the same time that candidates 
for county offices o f such political parties are nom inated, 
and by the same electors, and subject to the same rules 
and regulations; the candidate for such office o f such 
party receiving the highest popular vote shall be declared 
duly elected to such office, by  the committee canvassing 
the returns o f such election.

“ Section 2. T h e  term o f such chairman or chief 
executive officer o f such county committee shall begin 
on the first day o f January fo llo w in g  such primary  
election, and shall continue until the first day o f January 
following the next succeeding prim ary election for county  
officers; such officer shall be authorized and empowered 
to appoint the members o f such committee, which com ­
mittee shall consist o f  twelve qualified voters and m em ­
bers o f such party w h o shall have resided for a period o f  
six m onths prior to date o f  appointm ent w ithin the in ­
corporate limits o f  the city o f C olum bu s, and one quali­
fied voter and member o f such party w h o shall have 
resided for a period o f six m onths prior to date o f ap­
pointment w ithin the limits o f  each election precinct in

77



said county o f M uscogee; such committee so constituted 
shall have jurisdiction and power as heretofore exercised 
over the affairs o f such party.

“ Section 3. A  political party or organization  
which at the general election for officers in said county, 
then next preceding a prim ary, polled more than ten 
per cent o f the entire vote cast, is hereby declared to be a 
political party or organization w ithin  the meaning of 
this section w ithin said cou n ty ; in determining the total 
vote o f a political party, whenever required b y  this sec­
tion, the test shall be the total vote cast for the candi 
date, o f such political party or organization w h o re­
ceives the greatest number o f votes.”

W ashington Cou nty , A cts 1941. p. 975, § 1:

“ Every politcal party, organization, or association 
holding any political prim ary election in W ashington  
C ou n ty  for the purpose o f choosing or selecting candi­
dates for the place o f  representative fro m  said C ou n ty  to 
the General A ssem bly, shall designate by  num ber the 
places for which candidates are to be selected at said 
primary in said cou n ty ; said designation by  number to 
correspond to the number o f places for which candidates 
are to be selected.”

W ilcox County . A cts 1937, pp. 1449. 1454, § 6:

“ In all primary elections held or conducted by any 
political party for the nom ination o f candidates for the 
office or offices o f commissioners o f roads and revenues 
o f said C o u n ty  o f W ilc o x , the candidate or candidates, 
as the case m ay be, for nom ination for such office, shall 
be voted for and nom inated by  the qualified voters o f the 
particular commissioner’ s district in which such candi­
date lives or candidates live and from  which he is, or they

78



are eligible for election, and the qualified voters o f the 
several commissioner’ s districts o f said county shall be 
permitted, in such prim ary election, to vote only for a 
candidate and select a nominee for the particular com ­
missioner’ s district o f  which they are qualified voters.”

79









IN THE

liniUh States (Etrrtrit ( ta rt of K pptdlz
F or the F ifth  Circuit

No. 11,494

JOSEPH E. CHAPMAN, J r., et al,
Appellants and Cross-Appellees,

v.
PRIMUS E. KING,

Appellee and Cross-Appellant.

(A nd R everse T itle)

APPEAL AND CROSS-APPEAL FROM TH E  DISTRICT COURT OF TH E 
UNITED STATES FOR TH E  MIDDLE DISTRICT OF GEORGIA.

MOTION AND BRIEF FOR THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT OF 

COLORED PEOPLE AS AMICUS CURIAE.

W illiam  II. H astie,
A . T. W alden,
T hurgood M arshall,

Counsel for the National Association for 
the Advancement of Colored People.

Robert L. Carter,
A. P. T ureaud,
Joseph A . T hornton ,

Of Counsel.





TABLE OF CONTENTS

PAGE

Motion _______________________________________________________  1

Bbief___________________________________________________  3

Statement of Case______________________________  3
Question Presented_____________________________  6
A rgument—The Constitution of the United States 

prohibits exclusion of qualified .Negro electors 
from voting in primary elections in Georgia-----  7

The Primary Election Is an Integral Part of 
the Election Machinery of Georgia_______ 10

The Primary in Georgia Effectively Controls 
the Choice of Officers____________________  11

Conclusion -------------------------~-------------------------------  12

Table of Cases

Grovey v. Townsend, 295 U. S. 45 (1935)_____________ 8
Guinn v. U. 8., 238 U. S. 347 (1915)__________________  7
Lane v. Wilson, 307 U. S. 268 (1939)_________________  7, 8
Myers v. Anderson, 238 U. S. 368 (1915)_____________
Newberry v. U. 8., 256 U. S. 232 (1921)_________ ___
Nixon v. Condon, 286 U. S. 73 (1932)_________________
Nixon v. Herndon, 273 U. S. 536 (1927)______________  8,
Smith v. Allwright, 321 U. S. 649 (1944)____________ 9,11
U. S. v. Classic, 313 U. S. 299 (1941)________________  8, 9

N
 00 CO

 O
i





IN THE

Ittitrfc B u t t s  Ctrmit Court of Kppttxls
F or the  F ifth  Circuit.

No. 11,494.

J oseph E. Ch apm an , Jr., et al.,
Appellants and Cross-Appellees,

v.

P rimus E. K ing ,
Appellee and Cross-Appellant.

(A nd R everse T itle.)

APPEAL AND CROSS-APPEAL FROM T H E  DISTRICT COURT OF TH E 

UNITED STATES FOR T H E  MIDDLE DISTRICT OF GEORGIA.

MOTION FOR LEAVE TO FILE BRIEF AS 
AMICUS CURIAE.

To the Honorable, the Judges of the United States Circuit 
Court of Appeals for the Fifth Circuit:

The undersigned as counsel for and on behalf of the 
National Association for the Advancement of Colored 
People, respectfully move this Honorable Court for leave 
to file the accompanying brief as amicus curiae.

The National Association for the Advancement of 
Colored People is a membership organization which for



2

more than 35 years has dedicated itself to and worked for 
the achievement of functioning democracy and equal justice 
under the Constitution and laws of the United States.

From time to time a justiciable issue is presented upon 
the decision of which depends the course for a long time of 
evolving institutions in some vital area of our national life. 
Such an issue is before the Court now. As will more fully 
appear in the accompanying brief, this Court is here 
asked to decide whether qualified Negro electors may be 
excluded from voting in Democratic Primary elections in 
Georgia which elections are integral parts of the election 
machinery of Georgia and are decisive of the election of 
federal and state officers.

It is to present written argument on this issue, funda­
mental to citizenship of all Americans, that movants ask 
leave to file a brief amicus curiae. Counsel for appellee 
have consented to the filing of this brief. One of the at­
torneys of record for appellants has consented but no reply 
has been received from other counsel for appellants at the 
time of the printing of this motion.

W illiam  H. H astie, Washington, D. C., 
A. T. W alden, Atlanta, Georgia, 
T httkgood M aeshall, New York, 
Counsel for the National Association 

for the Advancement of Colored 
People.

R obekt L. Cabter, New York,
A. P. T ureatjd, New Orleans,
J oseph A. T hornton , New Orleans,

Of Counsel.



IN' THE

IniUb Platen (Etmtit (Emtrt nl KppmU
F or the  F ifth  Circuit.

No. 11,494.

J oseph E. Chapm an , J r ., et al.,
Appellants and Cross-Appellees,

v.

P rimus E. K ing ,
Appellee and Cross-Appellant.

(A nd R everse T itle.)

APPEAL AND CROSS-APPEAL FROM  T H E  DISTRICT COURT OF TH E  

UNITED STATES FOR T H E  MIDDLE DISTRICT OF GEORGIA.

BRIEF FOR THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE AS 

AMICUS CURIAE.

Statement of Case.

The opinion, findings of fact, and conclusions of law 
and statutes involved are set out in full in the record and 
briefs filed herein.

The appellee and cross-appellant herein brought an 
action for damages in the District Court of the United

3



4

States for the Middle District of Georgia under Sections 
31 and 43 of Title 8 of the United States Code on the 
grounds that appellants and cross-appellees acting as admin­
istrative officers for the State of Georgia denied the appel­
lee and cross-appellant the right to vote in the Democratic 
Primary elections in Georgia thereby denying him a right 
guaranteed in Article I and Amendments 14, 15 and 17 of 
the United States Constitution.

There is no dispute as to the facts in the case which 
appear in a stipulation filed by counsel for both sides and 
appears in the record on pages 14-27.

The appellee is a member of the Negro race, and at the 
time of the primary election on July 4, 1944 was a duly 
qualified and registered voter of Muscogee County, Georgia, 
and a resident and citizen of Georgia. The appellants were 
members of the Democratic Executive Committee of Mus­
cogee County, Georgia.

On July 4, 1944, there was held in Muscogee County, 
Georgia, and throughout the State of Georgia a primary 
election for the nomination of Democratic candidates for 
United States Senator, Representatives in Congress and 
various state offices. The primary election was held in con­
formity with the rules and regulations of the State Demo­
cratic Executive Committee and under the immediate super­
vision of the appellants and under the laws of Georgia relat­
ing to primary elections. Paragraph 2 of the Rules and 
Regulations of the State Democratic Executive Committee 
provides that “ The Primary Election shall be conducted 
in accordance with the laws of this state and the custom of 
the party in so far as they do not conflict with existing 
laws and these rules. All white electors who are Democrats 
and qualified to vote in the general election and who in good 
faith pledge themselves to support the Democratic can-



5

didates for all offices to be voted on this year, are hereby 
declared qualified to vote in said primary”  (R. 28-29).

The appellants in their official capacity held the primary 
election of July 4, 1944 in Muscogee County and in such 
capacity appointed clerks, tabulators, and managers there­
for and publicized the rules and regulations which governed 
said elections. On July 4, 1944, appellee presented himself 
at the regular polling place during the hours for voting and 
expressed a desire to vote. Appellants advised the appellee 
that, solely on account of his race, he was not qualified to 
be a member of the Democratic Party of the State of 
Georgia and was therefore not qualified to vote in said pri­
mary by reason of Rule 2 of the rules governing said pri­
mary as adopted by the State Democratic Executive 
Committee.

It was also agreed between the parties that since 1900 
the Democratic nominees for United States Senator, Rep­
resentatives in Congress, Governor and other State House 
offices nominated at primaries have been elected in the 
ensuing general election. No party other than the Demo­
cratic Party has held a State-wide primary in Georgia dur­
ing the past forty years, though there have been candidates 
in the general elections other than the Democratic nomi­
nees. All State and county officers performing any duties 
in connection with primary elections perform such duties 
without expense to the Democratic Party or its candidates 
or nominees. All of the Democratic candidates nominated 
in the Primary of July 4, 1944, were elected at the subse­
quent general election.

The Trial Judge, after considering the pleadings, stipu­
lations of fact and statutes of Georgia, entered a judgment 
for the sum of one hundred dollars in favor of the appellee. 
In the conclusions of law, it was held that the Democratic



6

Primary Election of July 4, 1944, for the nomination of 
candidates for United States Senator and members of the 
House of Representatives to be voted upon in the general 
election, was by law an integral part of the electoral process 
of the State of Georgia and that the holding of said primary 
was action by the State of Georgia acting through the 
Democratic Party as its instrumentality. The Trial Judge 
also concluded that the appellee’s right to vote in said 
primary was a right secured to him by the Constitution and 
laws of the United States and that appellants as the duly 
constituted authorities of the Democratic Party in refusing 
to permit appellee to vote in said primary election, solely 
on account of his race or color, deprived appellee of a right 
secured by the Constitution and laws of the United States 
and such action was in violation of the 14th, 15th and 17th 
Amendments.

Appellants noted an appeal from the judgment and sub­
sequent hereto the appellee noted a cross-appeal on the 
ground that although the judgment was favorable to ap­
pellee, in upholding his right to vote in the primaries to 
nominate Democratic candidates for Federal offices, the 
judgment in effect and by implication denied to appellee the 
right to vote in Democratic Primaries in Georgia for the 
nomination of candidates for State offices.

Question Presented.

The question presented by the appeal and cross-appeal 
in this case is :

“ D o e s  t h e  C o n s t i t u t i o n  o f  t h e  U n i t e d  S t a t e s  p r o ­
h i b i t  T H E  EXCLUSION OF QUALIFIED NEGRO ELECTORS 
FROM VOTING IN  PRIM ARY ELECTIONS IN  GEORGIA FOR 
N OM INATION OF CANDIDATES FOR FE D E R A L  AND STATE 

OFFICES ? ’  ’



7

ARGUMENT.

The Constitution of the United States prohibits 
exclusion of qualified Negro electors from voting in 
primary elections in Georgia.

The right of an American citizen to participate in the 
electoral processes is the most fundamental right inherent 
in citizenship. Discrimination because of sex or race in the 
exercise of this right is prohibited by our Constitution. 
The 13th, 14th and 15th Amendments to the United States 
Constitution and the Federal civil rights statutes were en­
acted for the purpose of prohibiting discrimination because 
of race or color.

Despite the Constitution and laws of the United States, 
Negroes have from time to time been effectively disfran­
chised in many States by means of statutes and practices 
adopted in efforts to circumvent these positive mandates 
through arbitrary restrictions on registration. The device 
of the “ grandfather clause” 1 and other ingenious dis­
criminatory registration practices have been devised but 
uniformly struck down as unconstitutional when examined 
by the United States Supreme Court.

In the most recent Supreme Court case involving efforts 
to prevent Negroes from registration it was stated:

“ We therefore cannot avoid passing on the merits 
of plaintiff’s constitutional claims. The reach of the 
Fifteenth Amendment against contrivances by a state 
to thwart equality in the enjoyment of the right to

1 Guinn v. United States, 238 U. S. 347 (1915) ; Myers v. Ander­
son, 238 U. S. 368 (1915); Lane v. Wilson, 307 U. S. 268 (1939).



8

vote by citizens of the United States regardless of 
race or color, has been amply expounded by prior 
decisions. The Amendment nullifies sophisticated as 
well as simple-minded modes of discrimination. It 
hits onerous procedural requirements which effec­
tively handicap exercise of the franchise by the col­
ored race although the abstract right to vote may re­
main unrestricted as to race. ’ ’ 2

Prior to the decision in United States v. Classic 3 there 
was considerable doubt as to the position of primaries in 
the electoral process.4 The Court had tended to approach 
the question by emphasizing the participation of the “ party 
organization”  in primaries rather than by determining and 
evaluating the participation of government therein.

The United States Supreme Court in the case of United 
States v. Classic, stated that:

“  . . . Where the state law has made the primary 
an integral part of the procedure of choice, or where 
in fact the primary effectively controls the choice, the 
right of the elector to have his ballot counted at the 
primary, is likewise included in the right protected 
by Article 1, section 4. And this right of participa­
tion is protected just as is the right to vote at the 
election, where the primary is by law made an in­
tegral part of the election machinery, whether the 
voter exercises his right in a party primary which 
invariably, sometimes or never determines the ulti­
mate choice of the representative . . . ”

2 Ibid—307 U. S. at p. 275.
3 313 U. S. 299 (1941).
4 See: Newberry v. United States, 256 U. S. 232 (1921); Nixon 

v. Herndon, 273 U. S. 536 (1927) ; Nixon v. Condon, 286 U. S. 73 
(1932) ; Grovey v. Townsend, 295 U. S. 45 (1935).



9

The United States Supreme Court thereby destroyed the 
fiction that modern primary elections are the action of 
“ private”  organizations and that the right to vote in such 
election can be controlled by individuals so as to escape the 
prohibitions of the Constitution of the United States. The 
Supreme Court recognized the duty of protecting the right 
to participate in the effective choice of officers whether in 
general election or by primary elections.5

The Classic case was followed by the case of Smith v. 
Allwright involving the refusal to permit a qualified Negro 
elector to vote in the Democratic Primary election in Texas. 
There was no essential change in the statutes of Texas be­
tween the Grovey and Alhvright case. The Supreme Court 
overruled its former decision in Grovey v. Townsend and 
stated:

‘ ‘ The privilege of membership in a party may be, 
as this Court said in Grovey v. Townsend, 295 U. S. 
45, 55, no concern of a state, but when, as here that 
privilege is also the essential qualification for voting 
in a primary to select nominees for a general elec­
tion, the state makes the action of the party the ac­
tion of the state.” 6

As a result of the decisions in the Classic and Allwright 
cases it is now clear that the decisive issue in determining 
whether or not a primary is within the prohibition of the 
United States Constitution is not whether the party is a 
private organization with a right to limit its membership 
but is whether the primary election is an integral part of 
the election machinery or is determinative of the choice of 
officials.7

0 See also Nixon v. Herndon, supra.
6 Smith v. Allwright, 321 U. S. 649 (1944).
7 See U. S. v. Classic, supra.



10

The Primary Election Is an Integral Part of the 
Election Machinery of Georgia.

The principles of law as stated in the Classic and All- 
wright cases apply to the instant case. In this case as in 
the above cases the question should be considered by the 
determination and evaluation of the participation of the 
State of Georgia on the one hand and the Democratic Party 
on the other hand in primary elections in deciding whether 
the conduct of these elections was, in legal contemplation, 
a governmental function subject to the United States Con­
stitution or a private enterprise.

There appears to be no dispute as to the statement in 
the opinion of the Trial Judge that:

“ Once a decision to hold a primary is made, the 
statutes of Georgia take hold and direct every essen­
tial step from registration and qualification of voters 
to the placing of the names of the nominees on the 
general election ballot”  (E. 70).

An entire chapter of the Code of Georgia is devoted to 
pi’imary elections. Article 2, Section 1 of the Constitution 
(1908) provided that no person shall participate in a pri­
mary unless he is a qualified voter. Many statutes have 
been enacted covering all elections at the same time such 
as Ann. Code, sec. 58-609 making it a crime for any person 
to furnish liquors “ on days of election, either state, county 
or municipal, or primary elections. ’ ’ The Georgia statutes 
are set out in full in briefs filed by appellants and appellee 
and will not be repeated here. It is impossible to read 
these provisions without arriving at the conclusion that in 
Georgia “ the state law has made the primary an integral 
part of the procedure of choice.”



11

The Primary in Georgia Effectively Controls the 
Choice of Officers.

The primary in Georgia not only meets the above test 
as set forth in the Classic and Allwright cases but also 
meets the alternative test in that it effectively controls 
the choice. No party other than the Democratic Party has 
held a State-wide primary in Georgia during the past forty 
years (E. 7). Since 1900, the Democratic nominees for 
United States Senator, Eepresentatives in Congress, 
Governor and other State House officers nominated at these 
primaries have been elected in ensuing general elections 
(R. 16). All of the Democratic Candidates nominated in 
the primary of July 4, 1944 were elected to office in the 
general election in November, 1944 (E. 17).

It is apparent that under both of the alternatives set 
forth in the Classic and Allwright cases the primary in 
Georgia is within the provisions of the United States Con­
stitution prohibiting refusal to permit appellee and other 
qualified Negroes to vote solely because of their race or 
color.

“ The United States is a constitutional democracy. 
Its organic law grants to all citizens  ̂a right to 
participate in the choice of elected officials without 
restriction by any state because of race. _ This grant 
to the people of the opportunity for choice is not to 
be nullified by a state through casting_ its electoral 
process in a form which permits a private organi­
zation to practice racial discrimination in the elec­
tion. Constitutional rights would be of little value 
if they could be thus indirectly denied.

Smith v. Allwright, supra.



12

Conclusion.

Race has no place in the governmental affairs of our 
nation. Our Constitution prohibits racial discrimination in 
governmental functions. Our nation was the guiding spirit 
in the United Nations Conference in San Francisco which 
adopted a charter providing the purpose of the United 
Nations shall be:

“ To achieve international cooperation in solving 
international problems of an economic, social, cul­
tural or humanitarian character, and in promoting 
and encouraging respect for human rights and for 
fundamental freedoms for all without distinction as 
to race, sex, language or religion; . .

The UNO charter also provides:

“ With a view to the creation of conditions of sta­
bility and well-being which are necessary for peace­
ful and friendly relations among nations based on 
respect for the principle of equal rights and self- 
determination of peoples, the United Nations shall 
promote: . . .

“ Universal respect for, and observance of, human 
rights and fundamental freedoms for all without dis­
tinction as to race, sex, language, or religion.”

We cannot be less scrupulous in giving our own people 
the full rights of citizenship under our constitutional 
democracy than we are in urging that fundamental free­
doms be extended to the oppressed abroad. We cannot in­
dulge in hypocrisy about democracy and retain either the 
respect of other peoples or our own self respect.



13

Wherefore, it is respectfully submitted that an 
order be entered to amend the judgment of the Trial 
Judge to apply to primaries for nomination of candi­
dates for both State and Federal officers.

W i l l i a m  H. H a s t i e

615 F Street, N.W., Washington, D. C. 

A. T .  W a l d e n

428 Herndon Bldg., Atlanta, Georgia.

T h u r g o o d  M a r s h a l l

20 West 40th Street, New York 18, N. Y.
Counsel for the National Association for 
the Advancement of Colored People, 
Amicus Curiae.

R o b e r t  L. C a r t e r , New York 
A. P. T u r e a u d , New Orleans 
J o s e p h  A. T h o r n t o n , New Orleans

Of Counsel.



L a w y e r s  P ress, I n c ., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300







IN THE

United States Circuit Court of Appeals
FOR THE FIFTH CIRCUIT.

N o .  1 1 4  9 4

JOSEPH E. CHAPMAN, JR., ET AL.,
Appellants,

versus

PRIMUS E. KING,
Appellee,

(And Reverse Title).

Appeals from the District Court o f the United States 
for the Middle District o f Georgia.

(March 6, 1946.)

Before SIBLEY, HOLMES, and McCORD,
Circuit Judges.

SIBLEY, Circuit Judge: The appellee King, a citizen
of the United States and of the State of Georgia and a 
qualified and registered voter in Muscogee County ac­
cording to the laws of Georgia, offered to vote in a Demo­
cratic Primary in that County in which nominees for the



2 Chapm an, Jr., e t al. v . K in g .

United States Senate and House of Representatives as 
well as for State offices were being chosen, and was denied 
the right by the appellants, who were in charge of the 
primary as the County Democratic Executive Committee, 
solely because he was of the colored or negro race. He 
sued for damages under the Civil Rights Act, 8 U. S. C. A. 
§§31 and 43, for the deprivation of a right secured by the 
Constitution of the United States, and especially by the 
Fifteenth Amendment. The facts were stipulated, includ­
ing the amount of damages, if any are recoverable. The 
District Judge made an exhaustive review of the Georgia 
statutes touching party primary elections (King vs. Chap­
man, et al, 62 Fed. Sup. 639) and concluded as a matter 
of law that this primary election “was by law an integral 
part of the electoral process of the State of Georgia” and 
the holding of it “was action by the State of Georgia 
through the Democratic party as its instrumentality” , and 
that King’s right to vote was withheld in violation of the 
Fourteenth, Fifteenth and Seventeenth Amendments of 
the Constitution, and thereupon entered judgment for the 
stipulated damages. The defendants have appealed. King 
took an appeal also on the ground that the judgment was 
favorable to him only as to his right to vote for nominees 
for United States Senator and Representatives, but that 
he was equally entitled to vote for nominees for State 
offices. 1

1. A motion is made to dismiss King’s appeal on the 
ground that he won his case, and has no cause to appeal. 
We agree. Neither in the facts stipulated, which the court 
found to be the facts in the case, nor in the conclusions of 
law, nor in the judgment is any such distinction drawn. 
The statute which is sued on, (8 U. S. C. A. §31), makes 
no difference between elections touching State offices and 
those touching federal offices, but applies in terms to all 
elections by the people, and the Fifteenth Amendment, 
to enforce which the statute was made, is broad enough to



Chapm an, Jr., et al. v . K ing. 3

include them all. King has no ground to complain against 
the judgment and his appeal is dismissed.

2. George Washington in his public addresses decried 
parties and factions in public affairs, and the electoral 
college as originally set up in the Constitution did not fit 
party choices of President and Vice President. But parties 
soon arose, the Constitution was changed as to the electoral 
college by the Twelfth Amendment, and party organiza­
tion is now fully recognized in political affairs, both State 
and federal. A party’s candidates were at first chosen in 
caucuses of its leaders, those for President sometimes by 
the Senators and Congressmen in Washington. Mass 
meetings were also used to nominate local candidates, or 
to choose delegates to party conventions which framed 
platforms and nominated candidates. Latterly, in order 
to give the party voters a direct voice in the choice of 
nominees, the party primary election arose and is much 
used. The primaries do not and cannot elect anyone to 
office. A vote therein is not strictly a vote in an election. 
The potency and importance of the primary lies in the 
pledge of those who participate in it to support and vote 
for the nominee in the election to follow. This pledge is 
generally understood, is often expressed in the “rules of 
the primary” , and has sometimes been reinforced by 
statute. In the present case the primary was appointed to 
be held July 4, 1944, by the Democratic Executive Com­
mittee of the State, according to the practice of the party; 
and in the call it was provided: “All white electors who 
are Democrats and qualified to vote in the General Elec­
tion and who in good faith pledge themselves to support 
the Democratic candidates for all the offices to be voted on 
this year, are hereby qualified to vote in said primary” . 
And it is agreed that King was a proper voter except that 
he was not white, but was a negro, and that he was ex­
cluded for that reason alone.



4 Chapm an, Jr., e t at. v . K in g .

Now the federal immigration laws frown on anarchists 
and on organizations which advocate opposition to all 
government or the overthrow of the government of the 
United States by force or violence, 8 U. S. C. A. §137; 
but we are advised of no statute, State or federal, which 
undertakes to limit the right of citizens who form a 
political party to select those who shall participate in it. 
Nor is there any statute which prohibits those who do 
participate in a party caucus, mass meeting or election 
from agreeing to support the result thereof. Accordingly 
there may be parties composed wholly of whites, or wholly 
of colored people, or wholly of Jews, or of men, or of 
women. In a pure party activity by such parties there 
would result an exclusion from voting in that activity of 
those of another race or sex, but it would not be a denial 
of the right to vote “in an election by the people in any 
State, territory, or county . . .  or other territorial 
subdivision” in the words of 8 U. S. C. A. §31, nor within 
the meaning of the Fifteenth or Nineteenth Amendments. 
The persons so excluded could freely vote in the election 
by the people in the territorial subdivision according to 
the statute and the Amendments, and win the election if 
they could muster a majority. There is indeed no way 
for the party to compel those who voted in its primary 
to support the nominee.1 Their pledge to do so might 
even be thought contrary to public policy in a court of 
law, because hindering the free expression in the election 
of the individual voter’s judgment and will. Certainly the 
exclusion practiced in the primary by the party would not 
be an exclusion by the United States or a State pro­
hibited by the Amendments;2 nor “under color of any
1 Compare Love vs. Wilcox, 119 Tex. 256; 28 S. W. (2) 515, 524.
2 Fifteenth Amendment. 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 enforce this article 
by appropriate legislation.

Nineteenth Amendment. 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 sex.

Congress shall have power to enforce this article by appropriate 
legislation.



Chapm an, Jr., e t al. v . K in g . 5

statute, ordinance, regulation, custom or usage of any 
State or Territory” , as is necessary under the language 
of 8 U. S. C. A. §43 s for a recovery of damages in this 
suit.

3. But the State of Georgia has not left party pri­
maries wholly to the various parties, but has recognized 
the practical potency of the party pledge, and the great 
importance to the public of the results of a primary held 
by a numerous party, and has protected and regulated 
such primaries almost exactly in the same way as it has 
regulated elections by the people. Much, perhaps most, 
of this regulation we think in nowise commits the State 
to the party practices. For example, the forbidding the 
sale or furnishing of intoxicants on election days, whether 
the election is a party primary or an election by the 
people, Georgia Code §58-609, is for the peace and good 
order of the community, an ordinary exercise of police 
power. So are the statutes which are designed to prevent 
frauds, for the State can rightly concern itself in the 
prevention of fraud in any sort of proceeding. And the 
constitutional and statutory provisions forbidding voting 
in party primaries, mass meetings, and conventions by 
persons who are not by the State law qualified to vote 
in elections are aimed against the absurdity of having 
nominations controlled by people who cannot vote. They 
protect the State elections against an abuse, and standing 
alone would not show an adoption of the primary by the 
State. And it must be observed that the Georgia primary 
laws are not specially applicable to any particular party, 
but to all parties which may call a primary. The State 
does not require a primary in any case, nor itself choose
3 8 U. S. C. A. §43. Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance, regula­
tion, 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 Constitution and laws, shall be liable to the 
party injured in an action at law, suit in equity, or other proper pro­
ceeding for redress. R. S. §1979.



6 Chapm an, Jr., e t al. v . K in g .

the primary managers, nor bear any of the expenses of the 
primary, except that a few acts are required of the Ordi­
naries and Clerks of Court having to do with the preven­
tion of frauds and mistakes and the discovery of them 
on a recount. The party attends to all these matters, and 
to the consolidation of the returns and declaration of the 
result.

4. NTor do we think the agreed fact that for the past 
few quadrenniums the Democratic party has carried the 
presidential election in Georgia, or the fact that the 
nominees in this particular primary were afterwards 
elected, is of great legal significance. It is a matter of 
public knowledge that it is not always so. Some counties 
in Georgia consistently elect Republican county officers. 
The Populist party not long ago about equalled the Demo­
cratic party in strength in the State and furnished a candi­
date for the Vice Presidency in Thos. E. Watson. The 
writer recollects one year in which his own County went 
Republican for President, Democratic for Congressman, 
and Populist for State and County officers. Not often, if 
ever, have a majority of the qualified voters participated 
in a primary, so as to prove the participants able to con­
trol the election. It really cannot be foretold with cer­
tainty at the time of a primary who will win in the final 
election; nor would it be a sound legal test to say that 
the action of a party was or was not State action accord­
ing to the prohability of that party’s success in the suc­
ceeding election, or according to the actual result of it.

5. We have of course considered the decisions in 
United States vs. Classic, 313 U. S. 299, a criminal case in 
which the Louisiana primary laws were discussed; and 
Smith vs. Allwright, 321 U. S. 649, a civil suit like this one 
in which the State of Texas was held by its primary laws 
to have adopted the primary election as a part of the 
State’s election machinery. The differences between the



Chapm an, Jr., e t al. v . K in g . 7

Georgia laws touching primaries and those of Louisiana 
and Texas seem to us to be fundamental, especially in that 
the Georgia laws do not require any party to hold a pri­
mary, do not require a party candidate to be in any case 
chosen by a primary, nor require the State to pay the 
expenses of the primary if a party calls one; and they 
permit persons not chosen by any party to have their 
names put on the official ballots at the election. The 
cited cases therefore do not decide this one. But there 
are features of the Georgia laws which seem to us to show 
that the State, when any party calls a primary, associates 
itself with the party in holding it, and adopts the result as 
authenticating the successful candidate to be the nominee 
of that party for the official election ballot/ The State 
collaborates in these ways: It prohibits anyone to par­
ticipate in any primary or convention of any political 
party who is not a qualified voter. Georgia Code §2-608, 
Constitution, Art. II, Sect. I, Par. 8. The State furnishes 
its list of registered voters and these voters alone are de­
clared entitled to vote in primaries as well as in general 
elections. Georgia Code §34-405. And the State regis­
trars are required to be at the court house during the 
voting hours of the primary as fixed by law §34-2001 (a), 
to make corrections in the list, §34-411 (Supplement). 
The State requires the party to select election managers, 
and requires each manager to take an oath that he will 
fairly and impartially and honestly conduct the election 
according to the provisions of law. §34-3201. If a voter 
is challenged, they are required to administer to him an 
oath that he is duly qualified to vote “according to the 
rules of the party and according to the election laws of the 
State” §34-3202. All the laws in reference to the qualifica­
tion of voters and their registration are applied to pri­
maries, and “No person who is not a duly qualified and 
registered voter according to law and who is not also duly 
qualified in accordance with the rules and regulations of 
the party holding the same, shall be entitled to vote at



8 Chapm an, Jr., e t  al. v . K in g .

any such primary election” . §34-3218. If the challenged 
voter swears falsely, the State will punish him. §34-9925. 
No one but a sworn manager can have any part in receiv­
ing or counting the votes. §34-3205. The managers must 
turn over tally sheets, lists of voters, ballots and other 
election papers to the Clerk of the Superior Court to be 
kept under seal until the next grand jury meets if no con­
test is filed. §34-3207. The managers are indictable for 
violation of their duty. §§34-9922, 34-9923. Generally all 
penal laws touching elections are extended to primaries, 
§34-9933, Supplement; and §34-9907.

Further, by the Act of 1917, Sections 34-3212 to 3218, 
the State has undertaken to control the method of deter­
mining who has been nominated in a primary for United 
States Senator, Governor, Statehouse officers and Justices 
of the Supreme Court and Court of Appeals, these being 
statewide elections, by saying that neither a majority nor 
a plurality of all votes cast shall nominate, but that a 
plurality of the votes in each county shall carry that 
county, and a majority of “county units” carried, as there­
in defined, shall determine the nominee; and if no candi­
date carried a majority of the county units and there are 
but two candidates the one who received a majority of 
the popular votes shall be the nominee; but if there are 
more than two candidates and neither carried a majority 
of the county unit votes, there shall be a second primary 
between the two leading candidates whose result is to be 
determined on the same basis; with other elaborate pro­
visions on further contingencies. This Act appears in 
large measure to take such primaries out of the control of 
the parties initiating them, and to substitute the State’s 
will in determining the mode of choice of the party 
nominee. It is this Act which specifically declares that 
no one may vote who is not qualified according to the 
rules of the party. §34-3218.



Chapm an, Jr., e t al. v . K in g . 9

We think these provisions show that the State, through 
the managers it requires, collaborates in the conduct of the 
primary, and puts its power behind the rules of the party. 
It adopts the primary as a part of the public election 
machinery. The exclusions of voters made by the party 
by the primary rules become exclusions enforced by the 
State and when these exclusions are prohibited by the 
Fifteenth Amendment because based on race or color, the 
persons making them effective violate under color of State 
law a right secured by the Constitution and laws of the 
United States within the meaning of the statute which is 
here sued on.

The judgment is accordingly
AFFIRMED.

A True copy: 
Teste:

Clerk of the United States Circuit Court of 
Appeals for the Fifth Circuit.









IN THE

Olnurt of tip? lotted States
O ctober T eem , 1947

No. 533

TOEAO TAKAHASHI,
Petitioner,

vs.
FISH AND GAME COMMISSION, LEE F. PAYNE, 
as Chairman thereof, W. B. WILLIAMS, HAEVEY E. 
HASTAIN, and WILLIAM SILYA, as members thereof,

Respondents.

ON W R IT  OF OEETIOEAKI TO T H E  SUPEEM E COURT 
OF T H E  STATE OF CALIFORNIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AMICUS CURIAE

A merican Civil  L ibeeties U nion , 
Amicus Curiae.

A rthue  Garfield H ays,
Counsel.

Charles de Y. Elites, 
Loren Miller,

Of the California bar,

Robert M . Benjamin, 
Edward J. Ennis, 
Frederick B. Sussman, 

Of the New York bar.





I N D E X

PAGE
Statement of t h e  Case ............................................. .................  2

Point I— T h e exclu s ion  o f  p e tit ion er , beca u se  he is 
inelig ib le to c itizen sh ip , f r o m  the occu p a tion  o f  
fishing den ies  h im  the equal p ro te c t io n  o f  the law s 3

Point II— T h e cou rt b e lo w  e rred  in  a p p ly in g  a p r e ­
sum ption o f  con stitu tio n a lity  to  the statute here 
involved  .........           7

Point III— T h e d iscr im in a tion  e n fo r ce d  b y  state  law  
against p e tit io n e r  on  the g ro u n d  o f  ra ce  v io la tes  
the U n ited  N ation s  C h a rter  ..............................................  8

Conclusion .......................................................................................... 9

T a b le  o f  Cases C ited

In re A h  C hong , 2 F ed . 733 (C .C .D . Cal., 1880) .............  6 , 7

Clarke v. D eckenbach , 274 U . S. 392, 396 .........................  7

Poster-F ountain  P a ck in g  C o. v. H a y d e l, 278 U . S.
1, 11 ............ -.................................................................................... 6

Hines v. D a v id ow itz , 312 U . S. 5 2 ............................................  7

Korem atsu v. U . S., 323 IT. S. 214, 216 ...... ..................... 8

M cCready v. V irg in ia , 94 U . S. 391 ................................... 6
Missouri v. H olla n d , 252 U . S. 416 .......................................  9

Nielson v. J oh n son , 279 U . S. 47 .......................................... 9

Oyama v. C a lifo rn ia , 332 U . S. 633, at 664-5 ....... .....4, 5, 7 , 9

Terrace v. T h om p son , 263 U . S. 197, at 221  ..................... 5
Truax v. R a ich , 239 U . S. 3 3 .....................................................  7



11

Statutes, Etc., Cited
PAGE

Fish and Game Code (Deering’s California Codes), 
Section 990 ...................................................................  2,8

8 U.S.C., §703 ...................................................................  3

Report of the Senate Fact-Finding Committee on 
Japanese Resettlement, May 1, 1945, pp. 5-6..........  8

Stats. 1943, ch. 1100..........................................................  8

United Nations Charter, Article 55 c and 56; 59 Stat.
1046 (1945) .................................................................. 9

United States Constitution:
Article VI, Clause 2 .................   9
Fourteenth Amendment ..........   3,4,6



IN THE

(Uflurt of te
October Term, 1947

No. 533

------- ^  4 a » .,----------------

Torao Takahashi,
Petitioner,

vs.

Pish and Game Commission, Lee F. Payne, as Chairman 
thereof, W. B. W illiams, Harvey E. Hastain, and W illiam 
Silva, as members thereof,

Respondents.

o n  w r i t  o f  c e r t i o r a r i  t o  t h e  s u p r e m e  c o u r t

OF T H E  STATE OF CALIFORNIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AMICUS CURIAE

This brief is filed with the consent of the parties. The 
American Civil Liberties Union is devoted to the protec­
tion of all persons, citizens and aliens alike, in the enjoy­
ment of the fundamental civil rights which are guaranteed 
by the Constitution of the United States. One of its 
prime objectives is the elimination of inequalities based



2

on racial discrimination in the degree of recognition 
accorded such rights, and it believes that the present case 
involves a highly significant instance of such discrimina­
tion.

Statement of the Case
The judgment of the Supreme Court of California to 

be reviewed by this Court denies the application of peti­
tioner, a Japanese ineligible to citizenship in the United 
States, for a writ of mandate directing the Fish and Game 
Commission of the state to issue to him a commercial 
fishing license.

In its opinion in this case, 30 Cal. (2d) 719, 185 P. (2d) 
805, the court below, three judges dissenting, held valid 
Section 990 of the Fish and Game Code (Deering’s Cali­
fornia Codes), which provides as follows:

“ Persons required to procure license: To whom 
issuable. Every person who uses or operates or 
assists in using or operating any boat, net, trap, 
line, or other appliance to take fish, mollusks or 
crustaceans to be brought ashore at any point in 
the State for the purpose of selling the same in a 
fresh state, shall procure a commercial fishing 
license.

“ A commercial fishing license may be issued to 
any person other than a person ineligible to citizen­
ship. * * *”

In so deciding, the California Supreme Court reversed 
the holding of the Superior Court that the above statute 
constituted a denial of the equal protection of the laws 
guaranteed by the Fourteenth Amendment.

Petitioner, a resident of California for 35 years before 
his evacuation by military order in 1942, was from 1915



3

until the date of such evacuation engaged in the occupa­
tion of commercial fishing on the high seas, holding 
licenses from the State Fish and Game Commission as a 
commercial fisherman. Because he is ineligible to citizen­
ship solely by reason of his race, petitioner has now been 
denied the opportunity to earn a livelihood either by fishing 
in waters subject to the jurisdiction of the State of Cali­
fornia or by bringing into that state for sale fish taken 
by him in other waters.

POINT I

The exclusion of petitioner, because he is ineligible 
to citizenship, from the occupation of fishing denies 
him the equal protection of the laws.

Uninhibited by the constitutional limitations which the 
Fourteenth Amendment imposes on the states, the Con­
gress of the United States has denied to the members of 
certain races the privilege of becoming citizens by natural­
ization (8 U.S.C., §703). But a state derives no power 
whatever to impose racial discriminations upon resident 
aliens from the Congressional power to exclude some or 
all aliens from naturalization on a racial basis. The 
members of those races" who are lawfully here, no less 
than others, are in need of and entitled to the equal 
protection of the laws of the various states. To hold that 
because of their racial ineligibility to citizenship these 
people constitute a class by themselves at whom special 
legislation by the states may be aimed is nothing less than 
to deny them protection equal to that afforded other 
persons.



4

This Court at the current Term held unconstitutional 
California’s Alien Land Law as applied to effect an 
escheat of agricultural land conveyed to the citizen son 
of an alien Japanese, where the consideration for the 
transfer was paid by the Japanese father. Oyama v. 
California, 332 U. S. 633. The statute in question forbade 
aliens ineligible for American citizenship to acquire, own, 
occupy, lease, or transfer agricultural land. While the 
narrow holding of the Court was that the Alien Land Law 
deprived the citizen son of the equal protection of the 
laws and of his privileges as an American citizen by 
presuming that the transfer to him was made with intent 
to evade the law because the consideration was paid by 
his ineligible alien father, four Justices, concurring in two 
separate opinions, were of the view that in forbidding 
the ownership of land by an ineligible alien the law was 
unconstitutional as violating the equal protection clause 
of the Fourteenth Amendment. The court found it un­
necessary to reach that question. The concurring opinion 
of Mr. Justice Black considers the statute here in ques­
tion, barring alien Japanese from the fishing industry, 
as being on the same level with respect to the Fourteenth 
Amendment as the Alien Land Law, 332 U. S. 633, at 
648-9.

A majority of the court below relied for the result 
reached in the instant case on its decision in People v. 
Oyama sustaining the constitutionality of the Alien Land 
Law, which was reversed by this Court in Oyama v. 
California, supra. Even were it conceded arguendo that 
a statute prohibiting the ownership of land by aliens 
ineligible to citizenship must at the present time be held 
constitutional, such a case has been distinguished from 
one involving a statute which would deny to aliens the



5

right to earn a living in a common occupation of the 
community. Terrace v. Thompson, 263 U. S. 197, at 221. 
Discrimination between aliens on the ground of race is 
hardly more justifiable than the discrimination between 
citizens on the ground of racial descent condemned by this 
Court in the Oyama case.

The argument of the state that the statute is not at 
least on its face solely discriminatory against Japanese 
and hence not race legislation of a kind proscribed by the 
equal protection clause of the fourteenth amendment is 
sheer sophistry. Assuming arguendo that persons of 
other races than Japanese are also barred, the state’s 
argument means in effect that any legislation to secure 
“ White supremacy”  could be constitutional since the 
discrimination falls equally on all non-white races. 
Merely to state this proposition is to see its fallacy and 
absurdity.

We are told by the majority opinion of the court below 
(185 P. (2d) 805, 812) that a classification which excludes 
from fishing privileges those aliens who are ineligible to 
citizenship is a reasonable conservation measure. That 
classification, however, is based not on the kinds of fish to 
be taken, or the season or the method or the quantity of 
the taking, but solely on the ancestry of the fisherman. 
We respectfully submit that such a classification has no 
rational relation to the purported conservatory intent of 
the legislature, and on its face is unlawfully discrimina­
tory.

The court below did not hold, nor have respondents 
contended, that the power to deny fishing privileges is 
free of constitutional restraint. The state’s interest in 
fish and game within its jurisdiction is a qualified owner­
ship, held in trust for the people of the state, under



6

which the taking and subsequent use may he regulated 
in the exercise of the police power for purposes of con­
servation—but not for such other purposes as caprice or 
prejudice may suggest (see Foster-Fountain Packing Co. 
v. Haydel, 278 U. 8. 1, 11).

Long ago a federal Circuit Court held invalid as 
against Chinese a California statute precisely comparable 
to that which has been sustained in the instant ease. In 
re Ah Chong, 2 Fed. 733 (C.C.D. Cal., 1880). The statute 
there involved prohibited fishing for sale by persons in­
capable of becoming electors of the state. The Court in 
its opinion in that case recognized the proprietary right 
of the state in the preservation of its game fish, earlier 
enunciated by this Court in McCready v. Virginia, 94 
U. S. 391), which would permit the denial of fishing pri­
vileges to all persons not citizens of the state. It was 
held nevertheless that the discrimination among aliens 
violated both a treaty then existing between the United 
States and China, and the Fourteenth Amendment to the 
Federal Constitution. In words which epitomize our con­
tention here—substituting only “ Japanese”  for “ Chin­
ese” , the irrational winds of prejudice having shifted in 
the intervening years—the Court said (2 Fed. at 737):

“ The fourteenth amendment of the national con­
stitution provides that ‘ no state shall * * *
deny to any person within its jurisdiction the equal 
protection of the laws.’ To subject the Chinese 
to imprisonment for fishing in the waters of the 
state, while aliens of all European nations under 
the same circumstances are exempt from any pun­
ishment whatever, is to subject the Chinese to 
other and entirely different punishments, pains, 
and penalties than those to which others are sub­
jected, and it is to deny to them the equal protec­



7

tion of the laws, contrary to those provisions of the 
constitution. ’ ’

Commenting on the Ah Chong case, this Court said in 
Clarke v. Deckenbach, 274 U. S. 392, 396 that it is an 
instance where “ the Fourteenth Amendment has been 
held to prohibit plainly irrational discrimination against 
aliens. ’ ’

We respectfully urge that the contrary holding of the 
Supreme Court of California in the instant case should 
be reversed.

POINT II

The court below erred in applying a presumption of 
constitutionality to the statute here involved.

The opportunity of all persons, whether citizen or 
alien, to find employment in the common occupations of 
the community is an important civil liberty which the 
states may not infringe. To allow denial of this oppor­
tunity by a state would in effect deny the possibility of 
settling to those whose admission Congress has permit­
ted. See Oyama v. California, 332 U. S. 633, 649 (con­
curring opinion). This Court has been solicitous to as­
sure the just treatment of aliens in whatever state they 
may reside. Truax v. Raich, 239 U. S. 33; Hines v. Davido- 
witz, 312 U. S. 52. That solicitude is needed for the pro­
tection of this petitioner who, upon returning to Cali­
fornia from his enforced wartime evacuation, has found 
himself excluded from his former occupation.

The instant case was decided upon the pleadings with­
out proof or suggestion of facts which would make such 
exclusion appear reasonable in the exercise of any power 
possessed by the state. This lack was supplied by the



8

application of a presumption of constitutionality (major­
ity opinion, 185 P. (2d) 805, 810). We submit that such 
a presumption has no place in this case where the civil 
rights of a racial minority are in issue. In Korematsu 
v. U. S., 323 U. S. 214, 216 the need for such searching 
review was repeated in words plainly applicable to the 
instant case:

“ It should be noted, to begin with, that all legal 
restrictions which curtail the civil rights of a single 
racial group are immediately suspect. That is not 
to say that all such restrictions are unconstitutional. 
It is to say that courts must subject them to the 
most rigid scrutiny. Pressing public necessity may 
sometimes justify the existence of such regula­
tions; racial antagonism never can.”

POINT III

The discrimination enforced by state law against 
petitioner on the ground of race violates the United 
Nations Charter.

Legislation such as that presently before the Court 
constitutes discrimination on the ground of race. The 
legislative history of the statute emphasizes that this is 
its purpose.* To permit enforcement of such a discrimi­
nation embodied in state law would conflict with the treaty 
obligation undertaken by the United States under the 
United Nations Charter, to “ promote * * * universal

*  S e c t io n  9 90  o f  th e  C a l i fo r n ia  F is h  a n d  G a m e  C o d e , firs t  c o d i f ie d  in 1933, 
w a s  a m e n d e d  in  1943 t o  p r o v id e  th a t  “ A  c o m m e r c ia l  f ish in g  lice n s e  m a y  be issued 
to  a n y  p e rs o n  o th e r  th a n  a n  a lien  J a p a n e s e ” . S ta ts . 1943, ch . 1100. In  1945 the 
p resen t w o r d s  “ a  p e rs o n  in e lig ib le  t o  c it iz e n s h ip ”  w e r e  s u b stitu te d  f o r  “ an alien 
J a p a n e se ” , f o l l o w in g  a  r e p o r t  b y  a  c o m m it te e  o f  th e  C a l i f o r n ia  S e n a te  that such 
c h a n g e  w o u ld  p r o b a b ly  e lim in a te  th e  d a n g e r  th a t  th e  s ta tu te  w o u ld  be  declared 
u n co n s titu t io n a l o n  th e  g r o u n d s  o f  d is c r im in a t io n . Report of the Senate Fact- 
Finding Committee on Japanese Resettlement, M a y  1, 1945, p p . 5 -6 .



9

respect for, and observance of, human rights and funda­
mental freedoms for all without distinction as to race, 
sex, language, or religion.”  United Nations Charter, 
Articles 55 c and 56; 59 Stat. 1046 (1945).

Since the foregoing obligation is under Article VI 
clause 2 of the Constitution, the supreme law of the 
land,* it follows that the statute must be denied enforce­
ment for this reason as well.

CONCLUSION

It is respectfully submitted that the decision of the 
California Supreme Court be reversed and the Cali­
fornia statute here involved be declared unconstitu­
tional.

Respectfully submitted,

A m e r i c a n  C i v i l  L i b e r t i e s  U n i o n , 

Amicus Curiae.

A r t h u r  G a r f i e l d  H a y s ,

Counsel.

C h a r l e s  d e  Y. E l k u s , 

L o r e n  M i l l e r ,

Of the California bar,

R o b e r t  M .  B e n j a m i n , 

E d w a r d  J. E n n i s , 

F r e d e r i c k  B .  S u s s m a n , 

Of the New York bar.

* Nielson v. Johnson, 279  U . S . 4 7 ;  Missouri v. Holland, 2 52  U . S . 416. F o r  
the p a rt icu la r  a p p lica b ility  o f  th e  c ite d  C h a rte r  p ro v is io n s  to  a n ti-J a p a n ese  
legislation, s ee  Oyama v . California, 332  U . S . 633 , 649 , 650, 673 ( c o n c u r r in g  
op in ion s).









I X  THE

B n p x m t (Bmvt of %  Btatm
October Term, 1947

No. 533

TORAO TAKAHASHI, 

v.
Petitioner,

FISH AND GAME COMMISSION, LEE F. PAYNE, as 
Chairman thereof, W. B. WILLIAMS, HARVEY E. 
HASTAIN, and WILLIAM SILVA, as members thereof.

MOTION AND BRIEF FOR THE NATIONAL  
ASSOCIATION FOR THE ADVANCEMENT  
OF COLORED PEOPLE AND THE NATIONAL  

LAW YERS GUILD AS A M IC I C U R IA E .

T htjrgood M arshall,
Counsel for the National Asso­
ciation for the Advancement of 
Colored People.

M arias W y x s  P erry,

Counsel for National Lawyers 
Guild.

Edward R. D udley,
Of Counsel.





I N D E X

Motion for Leave to File Brief as Amici Curiae______ 1

Brief:
Opinion Below ________________ „--------------------- ~~ 3
Statute Involved ________________________________ 3
Questions Presented_____________________________ 4
Statement of the Case___________________________ 4
Summary of Argument ---------------------------------------  5
Argument:

I Since there is no rational basis for the discrim­
ination embodied in the statute, it comes into 
fatal conflict with the Fourteenth Amendment 6

II State legislation excluding aliens from the right 
to work is an interference with the national 
sovereignty --------------------------    9
A. The legislation here presented is an attempt

to exclude a class of aliens from residing in 
the state_________________________________ 9

B. The right to exclude aliens is vested solely in
the Federal Government--------------------------  11

III A state law denying to a racial group the right 
to engage in a common occupation violates the 
obligations of the United States under the 
United Nations Charter-------------------------------  14

Conclusion_________________________________________  18

PAGE



11

Table of Cases

Allgeyer v. Louisiana, 165 U. S. 578--------------------------  15

Baldwin v. G. A. F. Seelig, 294 U. 8. 511_____________ 13
Buchanan v. Warley, 245 TJ. S. 60-----------------------------  7

Chinese Exclusion Case, 130 U. 8. 581 -----------------------  11

Edwards v. California, 314 TJ. S. 160-------------------- — 13
Estate of Tetsubumi, 188 Cal. 645___________________  10

Missouri ex rel. Gaines v. Canada, 305 U. S. 337--------- 7

Nixon v. Herndon, 273 U. S. 536_____________________  7

Oyama. v. California, 16 Law Week, 4108 __________ 10,17

Slaughter House Cases, 83 TJ. S. 36__________________  11
Steele v. Louisville & N. R. R. Co., 323 TJ. 8. 192______ 15

Truax v. Raich, 239 TJ. S. 33__________________ 9,10,12,15

U. S. v. Curtiss Wright, 299 TJ. S. 304________________  10

Yick Wo v. Hopkins, 118 TJ. 8. 356___________________  6
Yu Cong Eng v. Trinidad, 271 TJ. S. 500-------------------- 7

PAGE



I l l

Authorities Cited.

Aylsworth, “ The Passing of Alien Suffrage” , Am. Pol.
Sci. Rev. XXV (1931) 114 ______________________  11

Corwin, The Constitution and World Government_____ 11

Final Report, FEPC, June 28, 1946 _________________  16

Hyde, International Law (2d ed.) __________ _____ 11

Ichihashi, “ Japanese in the United States” __________  16

Konvitz, The Alien and the Asiatic in American Law___ 11

McGovney, “ Anti-Japanese Land Laws” , 35 Cal. Law 
Rev. 7, 5 1 _______________________________________  10

State Dept. Publications 2274, European Series, “ Mak­
ing the Peace Treaties”  ________________________  15

4 State Dept. Bulletin 347-451 ____________________  15

16 State Dept. Bulletin 1077, 1080, 1082______________  15

United Nations Charter, Articles 55 and 56__________  14
United States Census, 1940, “ Characteristics of the 

Non-White Population”  ________________________ 6,14

World Peace Foundation, Documents on Foreign Policy,
Vol. I, 1938-39

PAGE

15



2

The issue at stake in the above entitled cause is the 
power of a state to discriminate on racial grounds among 
persons within its jurisdiction in their exercise of the right 
to earn a living in a common occupation. The determina­
tion of this issue involves an interpretation of the Four­
teenth Amendment which will have widespead effect upon 
the welfare of all minority groups in the United States.

Consent of the parties for the filing of this brief has 
been obtained for the National Lawyers Guild and has been 
requested for the NAACP and will be filed as soon as re­
ceived.

T h t j r g o o d  M a r s h a l l ,

Counsel for the National Asso­
ciation for the Advancement of 
Colored People.

M a r i a n  W y n n  P e r r y ,

Counsel for National Laivyers 
Guild.

E d w a r d  R .  D u d l e y ,

Of Counsel.



IN  THE

^uprrmr Court of thr luttrfc i»tatro
October Term, 1947

No. 533

T o b a o  T a k a h a s h i ,

Petitioner,
v.

F i s h  a n d  G a m e  C o m m i s s i o n ,  L e e  F .  

P a y n e ,  as Chairman thereof, W. B. 
W i l l i a m s , H a b v e y  E. H a s t a i n ,  and 
W i l l i a m  S i l v a ,  as members thereof.

BRIEF FOR THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE AND 
NATIONAL LAWYERS GUILD AS AMICI CURIAE.

Opinion Below.

Statute Involved.

The opinion below and the statute involved are set forth 
in full in the record and in the Petition for Certiorari filed 
herein.

3



4

Questions Presented.

1. Whether a statute of the State of California 
denying to aliens ineligible to citizenship the right to 
earn their living by commercial fishing is consistent 
with the Fourteenth Amendment.

2. Whether such statute is an interference with 
the supremacy of the Federal government in the field 
of international law and in conflict with treaty obliga­
tions of the United States.

Statement of the Case.

The petitioner herein is a citizen of Japan who, under 
the naturalization laws of the Federal government, is 
presently ineligible to citizenship. He has resided in Los 
Angeles, California, continuously since 1907 with the ex­
ception of that period of time when he was excluded from 
California under the Military Exclusion laws adopted dur­
ing World War II. From 1915 until the Military Exclusion 
laws petitioner earned his living by commercial fishing on 
the high seas off California, which activity was carried on 
pursuant to a license granted by the Fish and Came Com­
mission of the State of California (R. 1-6).

In 1945, just prior to the restoration of freedom of 
movement to Japanese aliens who had been excluded from 
California, the state legislature amended Section 990 of 
the Fish and Game Code (California Stats. 1945, Ch. 181) 
to prohibit the issuance of a commercial fishing license to 
persons ineligible to citizenship or to corporations the 
majority of whose stockholders, or any of whose officers, 
were ineligible to citizenship. Upon the face of the stat­
ute, no other criterion is applied for the issuance of such 
licenses.



5

Upon petitioner’s return to California in October, 1945, 
he found himself, in the last years of his life, excluded 
from employment as a commercial fisherman after almost 
thirty years of gainful employment in that field.

The court of original jurisdiction, the Superior Court 
of the State of California, in and for the County of Los 
Angeles, found that this statutory restriction was unconsti­
tutional and granted a writ of mandamus (R. 7). On ap­
peal to the Supreme Court of California, the judgment of 
the lower court was reversed and the constitutionality of 
the statute was upheld (R. 30-45). Three judges dissented 
from this holding. The decision of the Supreme Court of 
California is now before this Court on writ of certiorari.

SUM M ARY OF ARGUMENT.

I.

Since there is no rational basis for the discrimina­
tion embodied in the statute, it comes into fatal conflict 
with the Fourteenth Amendment.

II.
State legislation excluding aliens from the right to 

work is an interference with the national sovereignty.
A. The legislation here presented is an attempt to 

exclude a class of aliens from residing in the state.
B. The right to exclude aliens is vested solely in the 

Federal Government.

II I.
A  state law denying to a racial group the right to 

engage in a common occupation violates the obliga­
tions of the United States under the United Nations 
Charter.



6

A R G U M E N T .

I.

Since there is no rational basis for the discrimina­
tion embodied in the statute, it comes into fatal conflict 
with the Fourteenth Amendment.

That this legislation is directed at Japanese aliens is 
conclusively proven by the 1940 Census figures which show 
33,569 Japanese ineligible to citizenship residing in Cali­
fornia and fewer than 900 others in the entire continental 
United States.

Since the adoption of the Fourteenth Amendment this 
Court has been vigilant in assuring that legislative classi­
fication of persons resulting in discrimination should bear 
a reasonable relationship to the achievement of legitimate 
ends of government. In a long line of decisions legislation 
has been declared unconstitutional were classification has 
been based on race alone.

Considering an ordinance fair on its face, but in practice 
discriminatory against the Chinese, this Court said of the 
discrimination:

“ No reason for it is shown and the conclusion 
cannot be resisted that no reason for it exists except 
hostility to the race and nationality to which peti­
tioners belong, and which in the eye of the law is un­
justified. ’ ’ 1

Of similar classification Mr. Justice H o l m e s  speaking 
for this Court said:

“ States may do a great deal of classifying that 
it is difficult to believe rational but there are limits,

1 Yick Wo v. Hopkins, 118 U. S. 356, 374.



7

and it is . . . clear . . . that color cannot be made the 
basis of statutory classification.” 2

The Supreme Court of California justified this legisla­
tion as based upon “ the broad powers resting in the state 
in regard to the regulation of its fish and game”  (E. 38). 
In the exercise of that power the court said:

“ Obviously if the legislature determines that 
some reduction in the number of persons eligible to 
hunt and fish is desirable, it is logical and fair that 
aliens ineligible to citizenship shall be the first group 
to be denied the privilege of doing so”  (R. 38).

Even assuming, arguendo, as the petitioners do not con­
cede, that these fish are the “ property”  of the state, the 
issue remains whether the state may condition the grant­
ing of licenses solely upon the race of the applicant, with­
out establishing any relationship between the object to be 
attained, presumably conservation, and the proscribed 
group.

The criticism of this theory put forth as fair and logical 
which was made by the dissenting opinion completely ex­
poses its lack of logic:

“ I can see no logic in depriving resident aliens, 
even though they are not eligible to citizenship, of 
the means of making a livelihood, including the pur­
suit of commercial fishing. They are lawfully in­
habitants and residents of the state. Even if it be 
assumed that non residents, both alien and citizens 
of the United States, may be excluded from game 
and fish on the theory that such resources belong to 
the people of the state, the fact remains that resident 
aliens are a part of the people—the inhabitants and

2 Nixon v. Herndon, 273 U. S. 536, 541; See also Buchanan v. 
Warley, 245 U. S. 60; Missouri ex rel. Gaines v. Canada, 305 U. S. 
337; Yu Cong Eng v. Trinidad, 271 U. S. 500.



8

residents of this state. Because some believe that 
aliens should be punished by such a penalty is no 
basis for a reasonable classification. There is no 
sound basis for the argument that because the fish 
and game belong to the people of the state, the tak­
ing of them may be prohibited to all, and that with 
such a broad power any group of people may be ar­
bitrarily excluded from the right to take any por­
tion thereof. On the basis of that reasoning the 
Legislature could validly prohibit persons ineligible 
to citizenship from using the highways. They be­
long to the state and the traffic'hazards would be less 
if fewer people were using them. The same is true 
of the use of the parks, schools and other public 
buildings and places. It could be argued that they 
are over-crowded and the more people using them 
the greater the cost to the public, all to the diminish- 
ment of the resources of the state natural or other­
wise. While the state may withhold a privilege if 
it elects not to grant it, it cannot arbitrarily prevent 
any member of the public from exercising it while 
granting such privilege to others. To conclude 
otherwise would deprive the equal protection prin­
ciple of all meaning”  (R. 49).

The complete lack of reasonableness of the legislation 
becomes apparent when one looks to the end which is sup­
posed to be accomplished. There is no limit fixed on the 
number of licenses which may be issued, nor does the state 
limit the number of fish to be taken or the period during 
which fish may be taken. No limits of the size of nets or 
the equipment used in commercial fishing are established. 
The licenses are not limited to residents of the state, but 
persons from throughout the entire country may flock to 
California, to get licenses and fish without restriction in the 
coastal waters. For every 100 aliens ineligible to citizen­
ship who are denied commercial fishing licenses, 500 new 
licensees may come in from every other state or country,



9

urged on by the thought of a profitable field of endeavor 
from which skilled workers are now barred by statute. No 
conservation is achieved.

There being no reasonable relation between the objec­
tives claimed as justification for this statute and the means 
sought to achieve it, no doubt can be entertained that this 
legislation like the statute in Truax v. Raich 3 is discrimina­
tion against a group of unpopular aliens, as such, in compe­
tition with citizens. As such it comes into fatal conflict 
with the Fourteenth Amendment and must fail.

II.

State legislation excluding aliens from the right to 
work is an interference with the national sovereignty.

The present complicated state of international relations 
demonstrates the wisdom of the concept that all power in 
the field of international law, which includes within its 
scope immigration as well as the power to confer citizen­
ship, must rest wholly in the Federal government. The 
legislation presented to this Court is an unwarranted and 
dangerous interference with that power.

A. The legislation here presented is an attempt to
exclude a class of aliens from residing in the state.

The amendment to the Fish and Game Code prohibiting 
aliens ineligible to citizenship from engaging in the com­
mon occupation of commercial fishing was enacted in 1945 
in the midst of an anti-Japanese hysteria on the west coast 
which exhibited itself in acts of violence which were ex­
tended even to honorably discharged veterans who had 
fought in the American army against the Japanese govern-

3 2 3 9  U . S . 33.



1 0

ment, While on its face this statute makes no mention of 
race, the dissenting opinion in the court below, viewing the 
historical background of this legislation and of court de­
cisions on anti-alien legislation in California, found that 
the law in the instant case is aimed solely at the Japanese 
(R. 53). See also D. 0. McG-ovney, “ Anti-Japanese Land 
Laws” , 35 Cal. Law Review 7, 51. The concurring opin­
ions of Mr. Justice M ttrphy and M r. Justice B lack in 
Oyama v. California4 rest in large part upon the fact that 
legislation against land ownership by aliens ineligible to 
citizenship in our western states has been “ designed to 
effectuate a purely racial discrimination”  . . . “ is rooted 
deeply in racial, economic, and social antagonism”  . . . 
and is the result of “ racial hatred and intolerance.”  Like 
the Alien Land Law, the California law here under review 
is designed to “ discourage the coming of Japanese into 
this State.” 5 6-

That the power to exclude aliens from the right to earn 
their living was also the power to exclude them from en­
trance and abode was recognized by this Court in Truax 
v. Raich, where it was stated:

“ The assertion of an authority to deny to aliens 
the opportunity of earning a livelihood when law­
fully admitted to the state would be tantamount to 
the assertion of the right to deny them entrance and 
abode, for in ordinary cases they cannot live where 
they cannot work. . . . ” 8

When this fundamental purpose of the law is recognized, 
it becomes clear that the statute is an interference with the 
sovereignty of the Federal government in the field of immi­
gration, naturalization, and international law.

4 16 L a w  W e e k  4 1 0 8 , -------- U . S . ----------,
6 Estate of Tetsubumi Yano, 188  C al. 64 5 .
6 2 3 9  U . S . 3 3 , 4 2 .



1 1

B. The right to exclude aliens is vested solely in the
Federal Government.
The Chinese Exclusion Case7 established and United 

States v. Curtiss Wright8 reaffirmed that the investment 
of the Federal government with the powers of “ external 
sovereignty”  in the field of international affairs wTas “ a 
necessary concomitant of nationality.”  Indeed, in “ The 
Constitution and World Organization” , Professor Corwin 
has concluded from these cases that in the field of inter­
national relations the Federal government does not operate 
under constitutional restraints.9 As late as 1945, the law 
of nations was not viewed as placing any restriction upon 
the discriminations which a sovereign might practice in 
establishing tests of undesirability for aliens seeking ad­
mission.10 11 Thus, the Federal government, and it alone, 
can admit or exclude aliens, without restriction or limita­
tion under the law today.

Despite the confused state of the law as to citizenship 
prior to the adoption of the Fourteenth Amendment,11 today 
the power to grant or withhold citizenship in our nation is 
also vested in the Federal government. However, the states 
continued to vest aliens within their respective boundaries 
with certain privileges of state citizenship, and it has been 
said that it was not until 1928 that an election was held in 
which no alien voted.12 Their power to do so is not chal­
lenged.
~ 7 130 U . S . 581 .

8 2 9 9  U . S . 304 .
9 P p . 6 , 19, 2 9 -3 0 . S e e  a lso  M . R .  K o n v it z ,  T h e  A lie n  a n d  th e 

A s ia tic  in  A m e r ic a n  L a w . C h a p ter  1.
10 C . C . H y d e ,  In te rn a tio n a l L a w  ( 2 d  E d . )  I ,  21 7 .
11 S e e  th e  o p in io n  o f  th is  C o u rt  in  Slaughter House Cases, 8 3  U . S . 

36, w h e r e  it is  stated , at p a g e  73 , th at p r io r  to  1 8 6 6 : “ It h a d  been  
said b y  em in en t ju d g e s  th a t n o  m a n  w a s  a c it izen  o f  th e  U n ite d  S ta tes  
e x ce p t  as h e  w a s  a c it iz e n  o f  on e  o f  th e  states c o m p o s in g  th e  U n io n .”

12 A y ls w o r t h , “ T h e  P a s s in g  o f  A lie n  S u ffr a g e ” , A m . P o l .  S c i. R e v , 
X X V  ( 1 9 3 1 )  114.



1 2

But a far different problem is presented when, after the 
admission of an alien by the Federal government, the state 
seeks, as here, to place additional and unreasonable burdens 
upon him. Though the Federal government may be un­
restrained by constitutional protections of private rights in 
determining whether to admit or exclude an alien, once 
admitted, even though denied national citizenship by Con­
gressional action, the alien is a person clothed with those 
constitutional guarantees of life, liberty and property and 
the protection of equal laws which form the basis of a de­
mocracy. The states inherit no such unrestricted power in 
relation to a resident alien as is possessed by the Federal 
government in regard to an alien seeking entry.

But another and equally serious restriction on the power 
of states to harry, persecute and, if possible, drive from 
their border aliens legally admitted to the country, arises 
from the fact that though we are a federation of sovereign 
states, the component parts may not isolate themselves and 
restrict the freedom of persons to establish residence or 
travel freely in the states.

Such was the reasoning which led this Court to hold 
unconstitutional an Arizona law restricting the right of 
aliens to work in common occupations, thereby excluding 
them from residence. In Truax v. Raich, this Court found 
that the attempt to exclude aliens from residence in certain 
states by state action would be derogatory of the power of 
Congress under which those aliens had been lawfully ad­
mitted to the country. In that decision, this Court spoke 
of the right of aliens, without the interference of the states, 
to enjoy “ in their full scope the privileges conferred by 
admission.”



13

In the words o f  Mr. Justice Cardoza, our Constitution 
was “ formed upon the theory that the peoples of the several 
states must sink or swim together and that in the long run 
prosperity and salvation are in union and not division.” 13

Attempts by the states to isolate themselves from the 
economic disasters of other sections of the country by limit­
ing the right of citizens to travel freely within the country 
have been struck down by this Court as subversive of the 
welfare of the nation on much the same basis, though re­
liance was placed on the commerce clause in so doing.14

Political and ecomonic reality in a world of shrinking 
dimensions give added emphasis to the legal requirement 
that the states of our nation must form a unit for the pur­
pose of determining the right to live within the states, which 
is, of course, contingent upon the right to earn a living 
within the states.

The ultimate result of laws such as that here challenged, 
if valid, would be to vest in the Federal government the 
right to make only an empty legal determination of the right 
of an alien to enter the United States while granting to the 
forty-eight states the power, by forty-eight individual laws, 
to exclude such persons from the United States. Viewed in 
that light, the interference with an inherent and necessary 
power of Federal sovereignty is clear and for that reason 
alone, this law is invalid.

13 Baldwin v . G. A. F. Seelig, 2 9 4  U . S . 511 , 523 .
14 Edwards v . California, 3 1 4  U . S . 160.



14

III.
A  state law denying to a racial group the right to 

engage in a common occupation violates the obliga­
tions of the United States under the United Nations 
Charter.

While the statute on its face purports to have a certain 
impartiality by describing the proscribed group as “ persons 
ineligible to citizenship,”  the 1940 Census Report15 16 shows 
only 48,158 aliens ineligible to citizenship in the country, 
of which 33,569 were Japanese aliens residing in California. 
By the same census only 853 aliens ineligible to citizenship, 
other than Japanese, resided in the entire United States. 
These figures conclusively establish that the legislation be­
fore this Court is aimed at one racial or national group 
and one alone—the Japanese.

Whatever the protections furnished in the Federal Con­
stitution against state legislation unreasonably discriminat­
ing on racial or natonal grounds, it is clear today that the 
Federal government has pledged itself, with the other mem­
bers of the United Nations, to fulfill in good faith an obliga­
tion to promote “ universal respect for and observance of 
human rights and fundamental freedoms for all without 
distinction as to race, sex, language, or religion. ” 18

The United Nations Charter, as a treaty duly executed 
by the President and ratified by the Senate 17 is declared 
to be the supreme law of the land by Article VI, Section 2 

of the Constitution and any laws of any state to the con­
trary must fall before this non-discriminatory provision 
of a treaty obligation.

15 U . S . C en su s , 1 9 4 0 , “ C h a ra c te r is t ics  o f  th e  N o n -W h it e  P op u la ­
t io n ,”  p . 2.

16 U n ite d  N a tio n s  C h a rte r , A r t ic le s  55 a n d  56.
17 51 S tat. 1031.



15

There can be no doubt that the right to work is one of 
the fundamental freedoms to which the United Nations 
Charter refers. It has been so declared by numerous de­
cisions of this Court. As was stated by this Court in 
Truax v. Raich, supra,

“ It requires no argument to show that the right 
to work for a living in the common occupations of 
the community is the very essence of the personal 
freedom and opportunity that it was the purpose 
of the (14th) Amendment to secure.”

This principle has been reiterated under many different 
circumstances, and the right to work has been protected 
against action only indirectly that of the government.18

While the interest of nations in foreign affairs was 
originally confined to the treatment of their own nation­
als in other countries, the scope of international negoti­
ations has been constantly broadening. At the close of the 
First World War treaties signed between many nations 
provided for the protection of civil rights of national 
minorities in no way related to the parties signatory. More 
recently our government included such provisions in 
treaties of peace with Italy, Bulgaria, Hungary and Rou- 
mania.19 That Japan is not yet a member of the United

18 S e e  Allgeyer v . State of Louisiana, 165 U . S . 5 8 9 ; Steele v . Loui­
siana & Nashville R. R. Co., 3 2 3  U . S . 192 . -

19 “ M a k in g  th e P e a c e  T r e a t ie s ,”  D e p t , o f  S ta te  P u b lica tio n s , 2 2 7 4 , 
E u ro p e a n  S e r ie s ;  1 6  S ta te  D e p t . B u lle tin  1077 , 1080 , 1082 . S e e  a lso  
R e s o lu t io n  N o . 51 o f  th e  In te rn a tio n a l A m e r ic a n  C o n fe r e n c e  o n  P r o b ­
lem s o f  W a r  a n d  P e a ce , M e x ic o  C ity , 1 9 4 5 ; D e p a rtm e n t o f  S tate  
B u lle tin  N o .  4 , M a r c h  18, 1945 , p p . 3 4 7 -4 5 1 . S e e  a lso  th e  R e s o lu t io n  
a d o p te d  b y  th e  E ig h th  In te rn a tio n a l C o n fe r e n c e  o f  A m e r ic a n  S ta tes  
at L im a , P e r u , in  1938, re a d in g  in  p a rt as f o l l o w s : “ T h a t  th e d e m o ­
cra tic  co n c e p t io n s  o f  th e  state g u a ra n tees  to  all in d iv id u a ls  th e  c o n d i ­
t ion s  essen tia l f o r  c a r r y in g  o n  th e ir  leg it im a te  a ctiv itie s  w ith  se lf- 
re sp ect .”  D o c u m e n t  o n  F o r e ig n  P o lic y ,  V o l .  I , 1 9 3 8 -1 9 3 9 , W o r l d  
P e a ce  F o u n d a tio n , p . 4 9 .



16

Nations in no way diminishes the obligation of this country 
to treat Japanese aliens resident here fairly and in a non- 
discriminatory manner. Our failure to do so has serious 
implications for world peace.

The passage of such laws as have existed in this coun­
try discriminating against the Japanese, including the 
congressional action depriving them of the possibility of 
becoming American citizens and their exclusion under the 
Quota Act, does not pass unnoticed in other nations. Even 
in 1924 when means of communication were much less de­
veloped, word of the Japanese Exclusion Act caused anti- 
American demonstrations and denunciations of our coun­
try in Japan.20 Today the Japanese press and the press 
of all nations follow more closely than in 1924 the practices 
with which we implement our protestations of democratic 
principles. As was stated by Mr. Dean Acheson on May 
8, 1946, when he was Acting Secretary of State: 21

“ the existence of discrimination against minority 
groups in this country has an adverse effect upon 
our relations with other countries. AVe are reminded 
over and over by some foreign newspapers and 
spokesmen, that our treatment of various minorities 
leaves much to be desired. AVhile sometimes these 
pronouncements are exaggerated and unjustified, 
they all too frequently point with accuracy to some 
form of discrimination because of race, creed, color, 
or national origin. Frequently we find it next to im­
possible to formulate a satisfactory answer to our 
critics in other countries; the gap between the things 
we stand for in principle and the facts of a particular 
situation may be too wide to be bridged. An atmos­
phere of suspicion and resentment in a country over

20 Y .  Ich ih a sh i, J a p a n ese  in  th e  U n ite d  S ta tes  (S t a n fo r d  U n iv ers ity  
1932 , p . 3 1 5 ) .

21 F in a l R e p o r t , F E P C ,  J u n e  2 8 , 1 9 4 6 , p . 6 .



17

the way a minority is being treated in the United 
States is a formidable obstacle to the development 
of mutual understanding and trust between the two 
countries. We will have better international relations 
when these reasons for suspicion and resentment 
have been removed.”

As stated by Mr. Justice B lack  in his concurring opinion 
in Oyama v. California, supra:

“ How can this nation be faithful to this inter­
national pledge if state laws which bar land owner­
ship and occupancy by aliens on account of race are 
permitted to he enforced?”

Within the framework of a federal form of government 
there may be many fields in which the United Nations Char­
ter will require specific enabling legislation before it be­
comes an effective obligation upon the people of the United 
States. Yet certain aspects of the Charter are by force of 
American law sufficiently clear to constitute the supreme 
law of the land as a self-executing obligation and thus to 
supersede state laws which violate them.

That the law here presented for review must fall before 
the supremacy of a treaty obligation of the United States 
was recognized by the concurring opinion in the Oyama case. 
Indeed, Mr. Justice M xjephy said of the Alien Land Law 
that it

“ does violence to the high ideals of the Constitution 
of the United States and the Charter of the United 
Nations . . . Human liberty is in too great a peril 
today to warrant ignoring that principle in this case. 
For that reason I believe that the penalty of un­
constitutionality should be imposed upon the Alien 
Land Law.”



18

Conclusion.

If at other times in our history there were moral grounds 
for the protection of unpopular minorities, there are today 
compelling practical reasons for the revitalizing of the 
practices of democracy within our borders. The statute 
here challenged not only vitiates constitutional guarantees 
of personal freedom, but weakens our nation in a field in 
which the Federal government is supreme. For these rea­
sons it is respectfully submitted that the judgment of the 
Supreme Court of California be reversed.

Respectfully submitted,

T hurgood M arshall,
Counsel for the National Asso­
ciation for the Advancement of 
Colored People.

M arian W ynn  P erry,
Counsel for National Lawyers 
Guild.

E dward R. D udley,
Of Counsel.





L a w y e r s  P ress, I n c ., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300







IN  THE

i>upmtt£ drnirt nf %  I h x x t e b  i>tatps
October Term, 1947

TORAO TAKAHASHI, 

v.
Petitioner,

FISH AND GAME COMMISSION, LEE F. PAYNE, as 
Chairman thereof, W. B. WILLIAMS, HARVEY E. 
HASTAIN, and WILLIAM SILVA, as members thereof.

MOTION AND BRIEF FOR THE NATIONAL  
ASSOCIATION FOR THE ADVANCEMENT OF 

COLORED PEOPLE AS A M IC U S  C U R IA E .

T h u r g o o d  M a r s h a l l ,

M a r i a n  W y n n  P e r r y ,

Counsel for the National 
Association for the Advance­
ment of Colored People.

E d w a r d  R. D u d l e y ,

Of Counsel.





I N D E X

PAGE

Motion for Leave to File Brief as amicus curiae______ 1
Brief for the National Association for the Advance­

ment of Colored People as amicus curiae ________ 3
Opinion Below and Statute Involved _________ 3
Questions Presented_________________________  4
Statement of the Case _______________________  4

Reasons for Granting the W rit_____________________  5
Argument:

I—The question presented by the petition is one of 
national importance and involves a fundamental 
question of constitutional law ___________________  5

II—A statute denying to a racial group the right to 
engage in a common occupation violates the equal 
protection clause of the Fourteenth Amendment 7

III—A  state law denying a racial group the right to 
engage in a common occupation violates obliga­
tions of the Federal Government under the United 
Nations Charter ______________________________ 10

Conclusion_________________________________________  13

Table of Cases

Allgeyer v. State of Louisiana, 165 U. S. 589 ________ 9
Baldwin v. G. A. F. Seelig, Inc, 294 U. S. 511, 523 ____  7
Edwards v. California, 314 U. S. 160 ________________  7
Hirabayashi v. United States, 320 U. S. 81, 100________ 8
Nixon v. Herndon, 273 U. S. 536, 541 ________________  8



11
PAGE

Oyama v. California, 16 L. W. 4108, — U. S. — (decided 
January 19, 1948) ----------------------------------------------- 6

Steele v. Louisville & Nashville R. R. Co., 323 U. S.
192_________________________________________ ____ 9

Truax v. Raich, 239 U. S. 33, 42 --------------------------------  6
United States v. Belmont, 301 U. S. 324 ------------------  11
Yano, Tetsubumi, Estate of, 188 Cal. 645, 239 U. S. 33,

4 2 ____________________________   6
Yick Wo v. Hopkins, 118 U. S. 356, 374 _____________  9

Authorities Cited

Dean Acheson, Acting Secretary of State, Final Report 
of F. E. P. C____________________________________  12

Elliots Debates, 3, p. 515 ___________________________ 11
“ Making the Peace Treaties, 1941-1947”  (Department 

of State Publications 2774, European Series 24); 16 
State Department Bulletin 1077, 1080-82 _________  12

McDiarmid, ‘ ‘ The Charter and the Promotion of Human 
Rights,”  14 State Department Bulletin 210 (Feb.
10,' 1946) _______________________________________  12

Raphael Lemkin, “ Genocide as a Crime under Inter­
national Law,”  Am. J. of Int. Law, Yol. 41, No. 1 
(Jan. 1947), p. 145____________________________  H

Stettinius’ statement, 13 State Department Bulletin,
928 (May, 1945) _________________________________  12

U. S. Census, 1940, Characteristics of the Non-White 
Population, p. 2 _________________________________  7



IN' THE

i>ttpnmt£ Olmtrt nf thp States

MOTION AND BRIEF FOR THE NATIONAL  
ASSOCIATION FOR THE ADVANCEMENT OF 

COLORED PEOPLE AS A M IC U S  C U R IA E .

To the Honorable, the Chief Justice and the Associate Jus­
tices of the Supreme Court:

The undersigned, as Counsel for the National Associ­
ation for the Advancement of Colored People, respectfully 
move this Court for leave to file the accompanying brief as 
Amicus Curiae in the above entitled appeal.

The National Association for the Advancement of 
Colored People is a membership organization which for 
thirty-eight years has dedicated itself to and worked for the 
achievement of functioning democracy and equal justice 
under the Constitution and laws of the United States.

October Term, 1947

P i s h  a n d  G a m e  C o m m i s s i o n , L e e  F. 
P a y n e , as Chairman thereof, W. B. 
W i l l i a m s , H a r v e y  E. H a s t a i n , and 
W i l l i a m  S i l v a , as members thereof.

T o r a o  T a k a h a s h i ,

v.
Petitioner,



2

From time, to time some justiciable issue is presented to 
this Court, upon the decision of which depends the evolution 
of institutions in some vital area of our national life. Such 
an issue is before the Court now.

The issue at stake in the above entitled petition for 
certiorari is the power of a state to discriminate among 
persons within its jurisdiction in their exercise of the right 
to earn a living in a common occupation. The determina­
tion of this issue involves an interpretation of the Four­
teenth Amendment which will have widespread effect upon 
the welfare of all minority groups in the United States.

T h u r g o o d  M a r s h a l l ,

M a r i a n  W y n n  P e r r y ,

Counsel for the National 
Association for the Advance­
ment of Colored People.

E d w a r d  E .  D u d l e y ,

Of Counsel.



IN THE

i>uprntt£ (Emtrt nf t h ?  ItitkJn States
October Term, 1947

T o b a o  T a k a h a s h i ,

Petitioner,
v.

F i s h  a n d  G a m e  C o m m i s s i o n , L e e  F .  

P a y n e , as Chairman thereof, W .  B. 
W i l l i a m s , H a b v e y  E. H a s t a i n , and 
W i l l i a m  S i l v a , as members thereof.

BRIEF FOR THE NATIONAL ASSOCIATION  
FOR THE ADVANCEMENT OF COLORED 

PEOPLE AS A M IC U S  C U R IA E

Opinion Below and Statute Involved

The opinion below and the statute involved are set forth 
in full in the record and in the petition for a writ of certi­
orari to this Court and are adopted herein as the statement 
of jurisdiction contained in that petition.

3



4

Questions Presented

I
Whether consistent with the Fourteenth Amend­

ment the State of California may deny to a single 
class of alien residents of California the right to 
earn their living by commercial fishing.

II

Whether consistent with the treaty obligations 
of the United States the State of California may 
deny to a single class of alien residents of Cali­
fornia the right to earn their living by commercial 
fishing.

Statement of the Case

The petitioner herein has been a resident of Los Angeles, 
California, continuously since 1907 with the exception of 
that period of time when he was excluded from California 
under the Military Exclusion Laws during World War II. 
From 1915 until his exclusion from the state by act of the 
Federal Government petitioner earned his living by com­
mercial fishing on the high seas, which activity was carried 
on pursuant to a license from the Fish and Game Commis­
sion of the State of California (R. 1-6). In 1945, the State 
of California amended Section 990 of the Fish and Game 
Code (Stats. 1945, Ch. 181) so as to forbid the issuance of 
a commercial fishing license to a person ineligible to citizen­
ship, or to corporations a majority of whose stockholders 
or any of whose officers were ineligible to citizenship. Upon 
the face of the statute no other criterion is applied for 
licensing. Upon petitioner’s return to California in October, 
1945 at the termination of the Military Exclusion Orders 
he found himself, after thirty years of employment as a 
commercial fisherman, completely barred from that field of 
employment.



5

The petition for certiorari in this Court is to review the 
judgment of the Supreme Court of California which re­
versed the holding of the Superior Court which had found 
that the Fish and Game Law, as amended, constituted a de­
nial of the equal protection of the laws guaranteed by the 
Fourteenth Amendment.

REASONS FOR GRANTING THE W RIT

I

The question presented by the petition is one df 
national importance and involves a fundamental ques­
tion of constitutional law.

II

A  statute denying to a racial group the right to 
engage in a common occupation violates the equal pro­
tection clause of the Fourteenth Amendment.

III

A  state law denying to a racial group the right to 
engage in a common occupation violates obligations of 
the Federal Government under the United Nation^ 
Charter.

A R G U M E N T

I

The question presented by the petition is one of 
national importance and involves a fundamental ques­
tion of constitutional law.

The legislation here presented for review was enacted 
at a time of strong anti-Japanese hysteria on the west coast



6

which revived the campaign of more than thirty years be­
fore to keep the Japanese out of California. This legis­
lation like the Alien Land Law of California which was be­
fore this Court in Oyama v. California1 was “ designed to 
effectuate a purely racial discrimination,”  . . . “ is rooted 
deeply in racial, economic and social antagonisms” , . . . 
and “ racial hatred and intolerance.” 1 2 Like that law it is 
framed “ to discourage the coming of Japanese into this 
state.” 3

This Court recognized in Truax v. Raich that:
“ The assertion of an authority to deny to aliens 

the opportunity of earning a livelihood when lawfully 
admitted to the state would be tantamount to the 
assertion of the right to deny them entrance and 
abode, for in ordinary cases they cannot live where 
they cannot work. And, if such a policy were per­
missible, the practical result would be that those law­
fully admitted to the country under the authority of 
the acts of Congress, instead of enjoying in a sub­
stantial sense and in their full scope the privileges 
conferred by the admission, would be segregated in 
such of the states as chose to offer hospitality.” 4

The end sought by this legislation reverts to the funda­
mental proposition upon which our country is founded, 
namely whether the states may by individual action divorce 
themselves from the common problems of the nation. The 
federal government has the exclusive right to determine 
whether Japanese aliens may enter this country, but the 
position of California asserts the right of state by individual 
action to nullify the act of the Federal Government and 
effectively exclude aliens from its territory. That such a

1 16 L. W. 4108, — U. S. — (decided January 19, 1948).
2 Ibid., concurring opinion of Mr. Justice M u rph y .
3 Estate of Tetsubumi Yano, 188 Cal. 645.
4 239 U. S. 33, 42.



7

concept must be rejected is apparent from the words of Mr. 
Justice C a r d o z o  in Baldtvin v .  G. A. F. Seelig, Inc.:

“ The Constitution was framed under the do­
minion of a political philosophy less parochial in 
range. It was framed upon the theory that the 
peoples of the several States must sink or swim to­
gether, and that in the long run prosperity and sal­
vation are in union and not division. ’ ’ 5 6

This language was adopted by this Court in 1941 in uphold­
ing the right of citizens freely to move from state to state.8 
The unity of our country’s destiny, asserted in 1915 to stem 
an hysteria against ‘ ‘ the yellow hordes ’ ’ and in the days of 
economic depression to protect the poor and unemployed, 
must be reasserted today by this Court if we are to move 
forward towards a peaceful and democratic society in a 
truly “ United”  States.

I I

A  statute denying to a racial group the right to 
engage in a common occupation violates the equal pro­
tection clause of the Fourteenth Amendment.

While the statute on its face purports to have a certain 
impartiality by describing the proscribed group as “ per­
sons ineligible to citizenship” , the 1940 Census Report7 
shows that of 47,305 aliens ineligible to citizenship in the 
country, only 1,000 were other than Japanese. Of these, 
33,569 were Japanese aliens residing in California.

Having so recently reviewed the legislative history of 
the California Alien Land Law in the Oyama case, this

5 294 U. S. 511 523.
6 Edwards v. California, 314 U. S. 160.
7 U. S. Census, 1940, Characteristics of the Non-White Popula­

tion, p. 2.



8

Court cannot fail to recognize the same purpose and the 
same undemocratic motivation in the enactment of a law 
barring Japanese from a common occupation in the State 
of California. It remains only to he considered whether 
there is any reasonable basis which can be legally justified 
under the Fourteenth Amendment, for the classification of 
Japanese as a group ineligible to engage in commercial 
fishing.

“ Such a rational basis is completely lacking 
where, as here, the discrimination stems directly 
from racial hatred and intolerance. The Constitution 
of the United States, as I read it, embodies the high­
est political ideals of which man is capable. It in­
sists that our government, whether state or federal, 
shall respect and observe the dignity of each indi­
vidual whatever may be the name of his race, the 
color of his skin or the nature of his beliefs. It thus 
renders irrational, as a justification for discrimina­
tion, those factors which reflect racial animosity.” 8 9

As stated by this Court, through Mr. Justice H o l m e s , in 
Nixon v. H e r n d o n “ States may do a good deal of classi­
fying that it is difficult to believe rational, but there are 
limits, and it is . . . clear . . . that color cannot be made the 
basis of statutory classification.”  The cold statistics of the 
number of ineligible aliens affected by this statute10 sweep 
away any contention that its basis is not the “ yellow color”  
of the Japanese. It is of such color legislation that this 
Court stated in Hirabayashi v. United States:

“ Distinctions between citizens solely because of 
their ancestry are by their very nature odious to a

8 Concurring opinion of Mr. Justice M u r p h y , in Oyama v .  Cali­
fornia, supra.

9 273 U. S. 536, 541.
10 See footnote 1, supra.



9

free people whose institutions are founded upon the 
doctrine of equality. For that reason, legislative 
classification or discrimination based on race alone 
has often been held to be a denial of equal protec­
tion.” 11

* # #

“ No reason for it is shown, and the conclusion 
cannot be resisted, that no reason for it exists except 
hostility to the race and nationality to which the 
petitioners belong and which in the eye of the law 
is not justified. The discrimination is therefore 
illegal. . . . ”  11 12 13

This Court has long recognized that the Fourteenth 
Amendment guarantees the right of persons within the 
jurisdiction of a state not only “ to be free from the mere 
physical restraint of his person”  but also “ to earn his 
livelihood by any lawful calling; to pursue any livelihood 
or avocation, and for that purpose to enter into all con­
tracts which may be proper, necessary, and essential to 
his carrying out to a successful conclusion the purposes 
above mentioned.” 18 Even the action of private associa­
tions sanctioned indirectly by the state or federal govern­
ment, in excluding persons from employment because of 
race have been held prohibited by constitutional limita­
tion.14

The legislation of the State of California seeking to pre­
vent Japanese from engaging in a common occupation has 
no rational basis. Being based solely on race, it comes into 
fatal conflict with the Fourteenth Amendment.

11 320 U. S. 81, 100.
12 Yick Wo v. Hopkins, 118 U. S. 356, 374.
13 Allgeyer v. State of Louisiana, 165 U.'S. 589.
14 Steele v. Louisville & Nashville R. R. Co., 323 U. S. 192.



10

HI
A  state law denying a racial group the right to 

engage in a common occupation violates obligations of 
the Federal Government under the United Nations 
Charter.

As set forth above in Point 1, the United States Govern­
ment has sole jurisdiction to admit aliens into the United 
States. Once such aliens are admitted they become entitled 
to those constitutional protections which under our form 
of government are afforded to all persons regardless of 
citizenship. More recently they have been afforded an 
added protection by the act of the United States in sub­
scribing to the United Nations Charter, Article 55 of which 
has pledged this country to promote “ universal respect 
for, and observance of human rights and fundamental free­
doms for all without distinction as to race, sex, language 
or religion.”

The United Nations Charter is a treaty, duly executed 
by the President and ratified by the Senate (51 Stat. 1031). 
Under Article VI, Section 2 of the Constitution such a 
treaty is the “ supreme Law of the Land”  and specifically, 
“ the Judges in every State shall he bound thereby, any 
Thing in the Constitution or Laws of any State to the 
Contrary notwithstanding.”

The right to work has long been recognized as a funda­
mental human right in American law.15 The laws of Cali­
fornia attempt to deny to Japanese this fundamental right 
in contravention of the international obligations of the 
United States.

15 Allgeyer v. State of Louisiana, Steele v. Louisville & Nashville 
R. R. Co. and Truax v. Raich, supra.



11

Historically, no doubt has been entertained as to the 
supremacy of treaties under the Constitution. Thus Madi­
son, in the Virginia Convention, said that if a treaty did 
not supercede existing state laws, as far as they contra­
vene its operation, the treaty would be ineffective.

“ To counteract it by the supremacy of the state 
laws would bring on the Union the just charge of 
national perfidy, and involve us in war.” 18

While it is true that Japan is not a party to the United 
Nations Charter, the treaty obligations of the United States 
under the Charter are not limited simply to nationals of 
the other member nations. It has now become clear by 
the action of our own government and of other governments 
in international affairs that the treatment of any minority 
group within any country is a proper subject of inter­
national negotiations.17

Official spokesmen for the American State Department 
have expressed concern over the effect racial discrimination 
in this country has upon our foreign relations and the then 
Secretary of State, Edward B. Stettinius, pledged our

18 3 E llio ts  D eb a tes  5 1 5 ;  see  a lso  United States v . Belmont, 301 
U . S . 3 2 4 — “ I n  resp ect o f  all in tern a tion a l n e g o tia t io n s  a n d  co m p a cts , 
an d  in  re sp e c t  o f  o u r  fo r e ig n  re la tion s  g e n e ra lly , state lin es  d isa p p ea r . 
A s  t o  su ch  p u r p o s e s  th e  state o f  N e w  Y o r k  d o e s  n o t  ex is t . W ith in  
the fie ld  o f  its  p o w e r s , w h a te v e r  th e  U n ite d  S ta tes  r ig h t fu lly  u n d e r ­
takes, it n e ce ssa r ily  h as w a rra n t to  co n su m m a te . A n d  w h en  ju d ic ia l 
a u th or ity  is  in v o k e d  in  a id  o f  su ch  co n su m m a tio n , S ta te  C on st itu tion s , 
state la w s , a n d  state p o lic ie s  a re  irre le v a n t to  th e  in q u iry  a n d  d e c i­
s ion .”

17 S e e  R a p h a e l L e m k in , “ G e n o c id e  as a  C r im e  u n d er  In te rn a tion a l 
L a w ,”  A m . J. o f  In t . L a w , V o l .  4 1 , N o . 1 (J a n . 1 9 4 7 ) ,  p . 145.



12

government before the United Nations to fight for human 
rights at home and abroad.18

The interest of the United States in the domestic affairs 
of the nations with whom we have signed treaties of peace 
following World War II can be seen from the provisions 
in the peace treaties with Italy, Bulgaria, Hungary and 
Bumania, and particularly with settlement of the free terri­
tory of Trieste, in all of which we specifically provided for 
governmental responsibility for a non-discriminatory prac­
tice as to race, sex, language, religion, and ethnic origin.18 
Our interest was in no way limited to treatment of Ameri­
can nationals.

The federal government having acted in the field of 
International Law and pledged our government to protect 
human rights and fundamental freedoms, no state within 
the union has the right to deny to any person such right 
or freedom upon racial grounds.

There cannot be any question that this legislation vio­
lates the letter and the spirit of the treaty obligations of 
the United States and under our Constitution must fall be­
fore the superior power of such treaty. * 14

18 M c D ia r m id , “ T h e  C h a rte r  a n d  th e P r o m o t io n  o f  H u m a n  R ig h ts ,”
14 S ta te  D e p a r tm e n t  B u lle t in  2 1 0  ( F e b .  10, 1 9 4 6 ) ;  a n d .S te tt in iu s ’ 
sta tem en t, 13 S ta te  D e p a rtm e n t  B u lle tin , 9 2 8  ( M a y ,  1 9 4 5 ) .  S ee  also 
le tte r  o f  A c t in g  S e c r e ta r y  o f  S ta te  D e a n  A c h e s o n  to  th e  F . E . P . C. 
p u b lish e d  at len g th  in  th e  F in a l R e p o r t  o f  F . E . P . C . re a d in g  in  part, 
“ the e x is te n c e  o f  d is c r im in a tio n  a g a in st m in o r ity  g r o u p s  in  th is cou n ­
tr y  h as an  a d v e r se  e ffe c t  u p o n  o u r  re la tion s  w ith  o th e r  co u n tr ie s .”
_ 19 S e e  d e s cr ip t io n  o f  th ese  p r o v is io n s  in , “ M a k in g  th e P e a ce  T rea ­

ties, 1 9 4 1 -1 9 4 7 ”  (D e p a r tm e n t  o f  S ta te  P u b lica tio n s  2 7 7 4 , E u ropean  
S er ie s  2 4 ) ;  16 S ta te  D e p a rtm e n t B u lle t in  1 0 7 7 , 1 0 8 0 -8 2 .



13

Conclusion

The actual effect of the California statute is to deny 
upon the basis of race, to a group of persons residing 
therein a right secured to all other persons. That this is 
discrimination under the Fourteenth Amendment has been 
clearly established in numerous cases before this Court. 
The Constitution protects all persons from discriminatory 
state action solely on the basis of race and prohibits the 
unequal application of the law.

It is respectfully submitted that the issues raised by the 
petition for certiorari are of such grave importance that 
this Court should review the decision of the court below.

T hurgood M arshall,
M arian W y n n  P erry,

Counsel for the National 
Association for the Advance­
ment of Colored People.

E dward R. D udley,
Of Counsel.



L a w y e r s  P ress , I n c ., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300







49 WEST 441b STsEEI
tiEW YOUR IB, N. l

No. . .
7

IN  T H E

Supreme Court of tfie Hniteb States

F ish and Game Commission, L ee E. P ayne, as Chair­
man thereof, W . B . W illiams, H arvey E. H astain, 
and W illiam  Silva, as members thereof.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF CALIFORNIA.

Sabitro K ido,
Peed Oicrand,
Fbank Chuman ,

Japanese American Citizens League, 
Of Counsel.

October Term, 1947.

T orao T akahashi, Petitioner,

v.

A. L. W irin,
Dean A cheson, 
Charles A. H orsky, 
E rnest W . J ennes,

Counsel for Petitioner.



. . < •: ' ■



Page
Opinions Below ..........................................................................................................  2
Jurisdiction ................................................................................................................... 2

Questions Presented .................................................................................................... 2
Statute Involved ........................................................................................................  3
Statement ..................................................................................................................... 3

Specification o f Errors to be U r g e d ......................................................................  7
Reasons for Granting the Writ ......................................................  7

I. Section 990 of the Fish and Game Code of California, on Its Face, 
Deprives Torao Takahashi, an Alien Ineligible to Citizenship, of 
the Equal Protection of the Laws and of Property Without Due 
Process of Law .........     7

II. Section 990 of the Fish and Game Code of California Is Anti- 
Japanese and Racial in Purpose and Hence Deprives Torao Taka­
hashi, an Alien of Japanese Race, o f the Equal Protection of the 
Laws and of Property Without Due Process of Law ...................  12

III. Section 990 of the Fish and Game Code of California, Insofar as 
It Prohibits Licensing of Persons Ineligible for Citizenship, Is 
Invalid Because of Conflict With Federal Authority Over, and Fed­
eral Policy With Respect to, Fisheries on the High Seas and 
Coastal Waters ................................................................................................ 16

Conclusion ..................................................................................................................... 22

CITATIONS.
CASES:

Allgeyer v. Louisiana, 165 U. S. 578...............................................................  9
Barbier v. Connolly, 113 U. S. 27 ................................................................  9
Buchanan v. Warley, 245 U. S. 60 ................................................................. 15
Butchers’ Union Co. v. Crescent City Co., I l l  U. S. 746............................ 8, 9
Coppage v. Kansas, 236 U. S. 1 ........................................................................ 9
Hines v. Davidowitz, 312 U. S. 52...................................................................  19
Korematsu v. United States, 323 U. S. 214 ............................................... 15
Oyama v. California, October Term, 1947, No. 44......................................... 10,13
People v. Oyama, 173 Pac. (2d) 794 .............................................................  5
Terrace v. Thompson, 263 U. S. 197 ............................................................. 5,10
Thomas v. Collins, 323 U. S. 516.....................................................................  15
Toomer v. Witsell, October Term, 1947, No. 415........................................  18
Truax v. Corrigan, 257 U. S. 312 ..................................................................... 9
Truax v. Raich, 239 U. S. 33 ........................................................... 6, 8, 9,10,11
United States v. California, 332 U. S. 19........................................ 17,18,19, 20
Virginia v. Rives, 100 U. S. 313 ....................................................................8,20
Yick Wo v. Hopkins, 118 U. S. 356 ............................................................. 6, 9, 15
Yu Cong Eng v. Trinidad, 271 U. S. 500 ..................................................... 15

, IN D E X



IN D E X  (Continued)

Page

STATUTES:
California Eish and Game Code, § 990 (Stats. 1945, ch. 181), as

am ended.................................................................................................2 and passim
Judicial Code, § 237 (b )  .....................................................................................  2
U. S. Code, tit. 8, § 41 ...................................................................................8,19, 20

M ISCELLANEOUS:
Act of Chapultepec ................................................................................................ 21
Bering Sea Pur Seal Convention (37 Stat. 1542) .................................. • • - 20
Brief for the United States in Support of Motion for Judgment, United

States v. California ..........................................................................   20
Bureau of Commercial Fisheries of California, Pish Bulletin No. 15

(1929) .....................................................................    16>17
Bureau of Commercial Fisheries of California, Pish Bulletin No. 44

(1935) . . . .  ..............................................     11
Bureau of Commercial Fisheries of California, Fish Bulletin No. 49

(1 9 3 7 ) ........................................................... .. • • ........... _................. .•............. 14,17
Bureau of Commercial Fisheries o f California, Pish Bulletin No. 57

(1940) ..........................................................        15>16
Bureau of Commercial Fisheries o f California, Fish Bulletin No. 58

(1940) ........................................................ . . . . . . .......... .................. .................15j 16
Bureau of Commercial Fisheries of California, Pisli Bulletin No. 59

(1944) .............................................................................  . . . . . .1 5 ,1 6 ,1 7
California, Department of Natural Resources, Division of Pish and

Game, Report for 1940-1942 ............................................................._•............  1?
California, Department of Natural Resources, Division of Fish and

Game, Report for 1942-1944 .............................................................................. 1?
Census o f 1940, Characteristics of the Population, Part I, Table 22 .. . . 14
Constitution of Japan (Ch. 3, Art. X I I I ) .....................................................  22
Constitution of the United States, 14th Amendment....................... 5 ,7 ,8 ,9 ,11
Daggett, T he R egu la tion  o f  M aritim e T rea tie s  hy  T rea ty  (1934) 28

A. J. I. L. 693 .................................................................................................18,20
H. Rep. No. 2124, 77th Cong., 2d Sess. (1942)............................................... 14
Jessup, T h e P a cific  C oast F ish er ies  (1939) 33 A. J. I. L. 129...............18,20
Presidential Proclamation No. 2668, September 28, 1945, 10 P. R. 12304. 21
Report of the Senate Fact-Finding Committee on Japanese Resettle­

ment, May 1, 1945 ............................................................................................. 18
The 1937 Halibut Treaty with Canada (50 Stat. 1351)....................... 20,21
United Nations Charter, Articles 55c 56 .......................................................  21



IN  TH E

Supreme Court of tfje Mmteb States;
October Term, 1947.

No,

Torao T akahashi, Petitioner, 

v.

P ish and Game Commission, L ee F. P ayne, as Chair­
man thereof, W . B. W illiams, H arvey E. H astain, 
and W illiam  Silva, as members thereof.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF CALIFORNIA.

Petitioner prays that a writ o f certiorari issue to 
review the judgment o f the Supreme Court of Cali­
fornia entered on October 17, 1947 (R . 54), reversing 
the original and amended judgments o f the Superior 
Court o f California for the County of Los Angeles (R. 
6, 7, 21), and directing that judgment be entered for 
the respondents (R . 54).



9

OPINIONS BELOW.

The memorandum o f opinion in the Superior Court 
(R . 11-18) is not reported. The opinions in the Su­
preme Court o f California (Opinion, R. 30; Dissenting- 
Opinion, R. 45) are reported in 30 Advance California 
Reports 723, 185 Pac. (2d) 805.

JURISDICTION.

The judgment of the Supreme Court o f California 
was entered October 17, 1947 (R . 54). It ordered that 
the judgments of the Superior Court “ be and the same 
are hereby reversed with directions to enter judgment 
for the commission and its members.”  {Ibid) .  The 
constitutional issues here presented were urged in the 
trial court (R . 2, 11-18) where they were sustained (R. 
6, 7, 21) and in the court below (R . 30-53) where they 
were overruled (R . 54). The jurisdiction o f this court 
is invoked under Section 237(b) of the Judicial Code, 
as amended.

QUESTIONS PRESENTED.

Section 990 of the Pish and Game Code of California 
prohibits the issuance o f commercial fishing licenses to 
aliens ineligible to citizenship. Petitioner is a Japanese 
alien, denied a license because of the statute. The ques­
tions presented are :

1. Whether Section 990 does not, on its face deprive 
petitioner, an alien of the Japanese race, o f the equal 
protection of the laws and due process of law in viola­
tion o f the Fourteenth Amendment to the Constitution.

2. Whether Section 990 is not, in its purpose and 
effect, a racist statute, directed solely against J  apanese 
aliens, and thus a denial to petitioner of the equal pro­
tection of the laws and o f due process of law.



3

3. Whether Section 990 is not invalid because of 
conflict with Federal authority over, and federal policy 
with respect to, fisheries on the high seas and on coastal 
waters.

STATUTE INVOLVED.

The statutory provision involved is Section 990 of 
the Fish and Game Code of California, as amended, 
(Stats. 1945, Ch. 181) which reads as follows:

‘ ‘ 990. Every person who uses or operates or as­
sists in using or operating any boat, net, trap, line, 
or other appliance to take fish, mollusks or crusta­
ceans for profit, or who brings or causes fish, mol­
lusks or crustaceans to be brought ashore at any 
point in the State for the purpose of selling the 
same in a fresh state shall procure a commercial 
fishing license.

“ A  commercial fishing license may be issued to 
any person other than a person ineligible to citi­
zenship. A  commercial fishing license may be 
issued to a corporation only if  said corporation is 
authorized to do business in this State, if  none o f 
the officers or directors thereof are persons ineligi­
ble to citizenship, and i f  less than the majority of 
each class of stockholders thereof are persons in­
eligible to citizenship.”

STATEMENT.

On June 7, 1946, Torao Takahashi filed an amended 
petition for a writ of mandamus in the Superior Court 
of the State o f California for Los Angeles County (R. 
1, 6). The respondents were, and are in this Court, the 

f California Fish and Game Commission and the chair­
man and members thereof (R. 2). The allegations of 
the amended petition may be summarized as follows:

Takahashi was born in Japan, but was a resident of 
Los Angeles, California from 1907 until 1942, when he



4

was evacuated by military order from  California along 
with others o f Japanese ancestry. Between 1915 and 
the time o f his evacuation he was engaged in the occu­
pation o f commercial fishing on the high seas. During 
that period he received annually, upon application, a 
commercial fishing license from  the respondent Fish 
and Game Commission (R . 1, 6).

In October, 1945, upon the termination o f the mili­
tary exclusion orders, Takahashi returned to California 
to resume his form er occupation. He is in all respects 
qualified to obtain a commercial fishing license except 
that he is o f Japanese ancestry. Respondents have re­
fused to issue him such a license because o f the provi­
sions o f Section 990 of the Fish and Game Code, supra, 
and because he is o f Japanese ancestry. Takahashi 
has no other occupation except that of commercial fish­
ing, and since his return to California he has been 
unable to secure other employment.1

Respondents filed both an answer and a general de­
murrer (R . 3-4). The demurrer was overruled and the 
trial court, finding the only issue to be one o f law (R. 
12), ordered the peremptory writ o f mandate to issue, 
thus directing the Commission to issue petitioner a 
commercial fishing license authorizing him to bring 
ashore in California fish caught by him in the high seas 
for fresh sale (R . 7). Subsequently, the judgment was 
amended so as to require respondents to issue a general

1 Allegations that Takahashi’s two sons and two1 sons-in-law had 
served in the United States Army, three of them overseas, and that 
one had received a Purple Heart and an Oak Leaf Cluster for ser­
vice in the Air Corps overseas (E. 1-2), were struck by the Su­
perior Court (R. 6) at the motion of respondents (R. 4-5). Struck, 
also, was the allegation that Takahashi had arrived in the United 
States legally and was a lawful resident of Los Angeles (R. 1, 
4-5, 6).



5

commercial fishing license without limitation (R . 21).
The decisions below. The Superior Court based its 

judgment for petitioner on two distinct grounds. First, 
it held that to deny a resident o f a State, solely because 
he is an ineligible alien, a commercial fishing license is 
to deny the equal protection of the laws guaranteed by 
the Fourteenth Amendment to the Constitution o f the 
United States. This denial, the court said, could not 
be justified as the regulation by the State o f the dispo­
sition of its own property, but was rather an unlawful 
limitation of the right to pursue a private and lawful 
occupation (R . 16). Second, it held that the legislative 
history of this California statute makes clear that its 
language is but a “ thin veil used to conceal”  a “ purpose 
* * * too transparent”  to eliminate Japanese aliens 
from the right to a commercial fishing license (R . 16- 
17). Such discrimination, “ patently hostile” , it found 
to be without any reasonable basis (R . 17-18).

The Supreme Court of California, three of the seven 
justices dissenting, reversed the Superior Court. The 
majority was o f the view that the legislature has almost 
unlimited powers to regulate hunting and fishing 
within its own borders and to deny the right to engage 
in these activities to other than its own citizens as it 
sees fit (R . 36-38). Moreover, relying on the decision of 
this Court in Terrace v. Thompson, 263 U. S. 197, and 
on its own decision in People  v. Oyama, 173 Pac. (2d) 
794, (now pending for decision in this court, October 
Term 1947, No. 44), which concerned prohibitions 
against ownership o f land by classes o f aliens, the court 
took the position that the ineligible alien classification 
is a reasonable one for conservation purposes (R . 38). 
The m ajority of the court did not feel that it had been 
established that the statute was racial in intent or ap­



6

plication (R . 39-42). Finally, the court held that, to 
the extent that the statute applies to the bringing 
ashore of fish caught beyond the coastal waters, it is 
reasonably calculated to render effective the State’s 
power of control over the fish supply within its terri­
torial waters (R . 42-45).

The dissenting opinion of Justice Carter (with 
whom Chief Justice Gfibson and Justice Traynor con­
curred) saw the issue primarily as whether an ineligi­
ble alien resident “ may be excluded from  engaging in 
a gainful occupation— from  working—making a liv­
ing”  (E . 45). Under Truax v. Raich, 239 U. S. 33, 
and Yick W o  v. Hopkins, 118 U. S. 356, they believed 
that there could be but one answer. They could find 
no reasonable basis for denying resident aliens the 
right to make a livelihood from  commercial fishing and 
no conceivable basis for discriminating between classes 
of aliens (R . 46-50). “ Assuming the soundness o f * * * 
the alien land law cases”  (R . 53), the minority distin­
guished them from  the instant case as being related to 
the devolution of real property and not to earning a 
living in a common occupation (R . 52-53). Finally, 
“ highly persuasive arguments”  may be made that the 
legislation in question is actually aimed solely against 
Japanese and is hence invalid as racist in purpose 
(R . 53).

On October 17, 1947, the Supreme Court entered its 
judgment, that the judgments o f the Superior Court 
“ be and the same are hereby reversed with directions 
to enter judgment for the commission and its members”  
(R . 54).



7

SPECIFICATION OF ERRORS TO BE URGED.

The Supreme Court of California erred:
1. In  failing and refusing to hold that Section 990 

of the Fish and Game Code of California did not, on 
its face, constitute a denial to petitioner, an alien of 
the Japanese race, of the equal protection of the laws 
and of due process of law in violation of the Fourteenth 
Amendment to the Constitution.

2. In  failing and refusing to hold that Section 990 
is not, in its purpose and in its necessary effect, a racist 
statute directed against aliens o f Japanese origin, and 
thus a denial to them, including petitioner, o f  the equal 
protection o f the laws and of due process of law in vio­
lation of the Fourteenth Amendment.

3. In  fa iling and refusing to hold that Section 990 
is not invalid because o f conflict with Federal authority 
over, and federal policy with respect to, fisheries on the 
high seas and on coastal waters.

4. In reversing the decision o f the Superior Court.

REASONS FOR GRANTING THE WRIT.

I.
Section 990 or the F ish and Game Code of Cali­

fornia, on I ts F ace, D eprives Torao Takahashi, an 
A lien I neligible to Citizenship, of the E qual P ro­
tection of the L aws and of P roperty W ithout D ue 
P rocess of L aw .

Section 990 of the Fish and Game Code of California, 
as amended, supra, requires a commercial fishing license 
not only by those who fish in the waters o f California 
but also by those who fish anywhere and who bring



8

their catch ashore at any point on the coast of Cali­
fornia for sale. Torao Takahashi, horn in Japan, but 
a resident of California for almost forty years, earned 
his living from 1915 to 1942 by fishing on the high seas. 
During all that 27 years he was issued commercial fish­
ing licenses. Since Takahashi’s return to California 
from military evacuation, he has been unable to resume 
his former occupation because of the 1945 amendment 
to the Fish and Game Code (Section 990, supra). This 
amendment, on its face, is contrary to the Fourteenth 
Amendment of the Constitution of the United States. 
It is even more clearly in conflict with the provisions 
of Section 41 of Title 8, U . S. C.; Virginia v. Rives, 
100 U . S. 313, 317. W e  believe that it must certainly 
be stricken down.

This statute expressly discriminates against aliens. 
But it does more than that: it divides the alien popula­
tion into two groups, and denies commercial fishing 
privileges to a minority within a minority— the aliens 
ineligible to citizenship. But ignoring for a moment 
the double discrimination, the issue, as the minority 
below stated it (R . 45) :

“ is whether an alien resident may be excluded 
from engaging in a gainful occupation— from  
work— making a living.”

On that issue the prior decisions of this Court leave 
no doubt as to the answer. Thirty years ago, in Truax 
v. Raich, 239 U . S. 33, it said (at p. 41) :

“ It  requires no argument to show that the right 
to work for a living in the common occupations of 
the community is of the very essence of the per­
sonal freedom and opportunity that it was the 
purpose of the Amendment to secure. Butchers’



9

Union Go. v. Crescent City Co., I l l  U . S. 746, 762; 
Bariier v. Connolly, 113 U . S. 27, 31 ; Yick Wo v. 
Hopkins, supra; Allgeyer v. Louisiana, 165 U. S. 
578, 589, 590; Coppage v. Kansas, 236 IJ. S. 1, 14. 
I f  this could be refused solely upon the ground of 
race or nationality, the prohibition of the denial 
to any person of equal protection of the laws would 
be a barren form of words.”

It  is no answer to say, as the State and the majority 
of the court below argue, that fish are the property of 
the State; that in the interest of conservation it may 
limit the right to fish; and that the reduction in the 
number of persons who may fish has a reasonable rela­
tionship to the object of conservation of fish and hence 
is within the police power of the State (R . 32, 36-43). 
The question remains whether the State may single out 
aliens from bringing into California for sale fish 
caught on the high seas outside its own territories. The 
question, however, answers itself; such a restriction 
patently amounts to an unreasonable classification in­
consistent with the equal protection of the laws, and a 
deprivation of the due process of law required by the 
Fourteenth Amendment. Truax v. Raich, supra; Truax 
v. Corrigan, 257 U . S. 312. Certainly, under that 
Amendment, a power to control does not mean the 
power to control arbitrarily. No one would say that 
the State could preserve its resources by denying 
licenses to fish only to red-heads.

The classification established by the State discrimi­
nates not only against aliens, however, arbitrary as 
that would be. Here, as already pointed out, the dis­
crimination is against a very special limited class of 
aliens— those ineligible for citizenship. The large num­
bers of non-resident aliens may carry on the occupation



10

denied Takahashi. German, British, and Russian aliens 
domiciled anywhere in this country, in or out of Cali­
fornia, or for that matter, in or out of the United 
States, may make their living fishing on the high seas 
and selling their catches in California. Only ineligible 
aliens— resident or non-resident of California— are de­
nied this privilege. Such a discrimination is baseless 
on its face, and the suggestion that it can be supported 
on the theory that the State can reduce the number of 
fishermen for conservation purposes, and that “ it is 
logical and fair that aliens ineligible for citizenship 
shall be the first group to be denied the privilege”  (R . 
38) does no more than confirm its patent unconstitu­
tionality. Takahashi is a resident of the State of Cali­
fornia. I f  participation in the bounty of the State 
may be limited, a resident of California, with obliga­
tion to the State, has far more right to participate in 
it than a German alien who is a resident of another 
State or even of Germany.

Nor may the State obtain support from Terrace v. 
Thompson, 263 U . S. 197, upon which the majority 
below relied (R . 38). This court has been asked to re­
consider, limit, and— if necessary— reverse the Thomp­
son case in Oyama v. California, October Term 1947, 
No. 44, now pending before the Court for decision. In  
any event, it held at most that eligibility for citizen­
ship is a reasonable classification for purposes of re­
stricting the devolution of real property. There Mr. 
Justice Butler took pains to distinguish Truax v. Raich, 
supra, pointing out that in Truax v. Raich the legisla­
tion (p. 221)

“ did not relate to the devolution of real property, 
but that the discrimination was imposed upon the 
conduct of ordinary private enterprise covering



11

the entire field of industry with the exception of 
enterprises that were relatively very small. It was 
said that the right to work for a living in the com­
mon occupations of the community is a part of the 
freedom which it was the purpose of the Four­
teenth Amendment to secure.”

A s the minority of the court below said (R . 5 3 ) :

“ Assuming the soundness of that distinction and 
the alien land law cases here we have a common 
occupation or calling ‘ commercial fishing,’ and 
hence the Truax case controls. ‘ Fishing was one 
of m an’s earliest source of food supplies and it is 
still one of his most important means of liveli­
hood.’ ”

Finally, it should be noted that the court below con­
ceded that the State’s power to regulate the bringing 
ashore to California for sale fish caught on the high 
seas is not a direct or express power but rather a “ nec­
essary”  one to make effective its power to control its 
own fisheries (R . 42-45). California clearly may exer­
cise no power over fishing on the high seas; indeed, as 
indicated below in Point I I I ,  the extent of its power 
over fishing on the coastal waters is far from clear. 
Thus, no matter what may be the scope of its authority 
with respect to its inland waters (which are not here 
involved), there is even less basis, i f  that be possible, 
for any presumption as to the validity of the State’s 
classification for licensing fishermen to fish in an area 
which is not a part of its public domain.



12

II.
Section 990 of the F ish and Game Code of Cali­

fornia Is A nti-J apanese and R acial in P urpose and 
H ence D eprives T orao T akahashi, an A lien of J apa- 
nese R ace, of the E qual P rotection of the L aws and 
of P roperty W ithout D ue P rocess of L aw .

The minority of the court below, although finding 
the statute to he unconstitutional on its face, added, in 
addition (R . 53) :

“ Finally, highly persuasive arguments may be 
made that the law in the instant case is aimed solely 
at Japanese in an obvious discrimination against a 
particular race, in spite of the fact that that race 
is not mentioned by name in the statute.”

The Superior Court made this an express ground of 
decision, stating (R . 17) that the words “ aliens ineligi- 
gle to citizenship”  were no more than a

“ thin veil used to conceal a purpose being too 
transparent * * * to eliminate alien Japanese from  
those entitled to a commercial fishing license by 

•means of a description rather than by name.”

A  brief reference to the legislative history of the stat­
ute, and some of the facts with respect to aliens in Cali­
fornia, will demonstrate the accuracy of the conclusion 
of the Superior Court.

Section 990 of the California Fish and Game Code 
was first codified in 1933 (Stats. 1933, eh. 73 ; based on 
Stats. 1909, ch. 197, as amended). In  1943 the statute 
was amended to provide, in so many words, that alien 
Japanese alone could not receive commercial fishing- 
licenses. It then read (Stats. 1943, ch. 1100) :

“ A  commercial fishing license may he issued to 
any person other than an alien Japanese.”



13

In  1945 this statute was considered further by a 
committee of the California Senate. Report o f the 
Senate Fact-Finding Committee on Japanese Resettle­
ment, May 1, 1945. That Committee reported as fol­
lows on the subject of “ Japanese Fishing Boats”  (pp. 
5-6) :

“ The committee gave little consideration to the 
problems of the use of fishing vessels on our coast 
owned and operated by Japanese, since this matter 
seems to have previously been covered by legisla­
tion. The committee, however, feels that there is 
danger of the present statute being declared uncon­
stitutional, on the grounds of discrimination, since 
it is directed against alien Japanese. It  is believed 
that this legal question can probably be eliminated 
by an amendment which has been proposed to the 
bill which would make it apply to any alien who is 
ineligible to citizenship. The committee has intro­
duced Senate Bill 413 to make this change in the 
statute.”

A  few months later, Section 990 was revised to read 
the way it reads today, with the phrase “ any person 
other than a person ineligible to citizenship”  substi­
tuted for the phrase “ any person other than an alien 
Japanese” — precisely as recommended by the Senate 
Committee.

No one can reasonably doubt that the Senate Com­
mittee was concerned only with the J apanese, and how 
the “ menace”  of the Japanese fishing boats might be 
eliminated; the whole Report was on the Japanese 
“ problem” .2 Nor can one reasonably doubt that the 
same concern motivated the California legislation. The

2 A copy of the Eeport of May 1, 1945, has been lodged with the 
Clerk in connection with Oyama v. California, October Term, 1947, 
No. 44.



1 4

phrase “ aliens ineligible for citizenship”  has in fact 
become, in California at least, merely a synonym for 
“ Japanese” , and a convenient circumlocution by which 
to evade constitutional limitations. In the past, a 
number o f groups of aliens were ineligible to United 
States citizenship; now, changes in the naturalization 
laws have left the restriction applicable— for practical 
purposes in California— to but one racial group.

Census figures, and other statistics subject to judi­
cial notice, indicate the practical situation. In  1940, 
apart from the Japanese, the total of citizens and aliens 
in California of racist groups not eligible for citizen­
ship was 2,962. Census o f 1940, Characteristics o f the 
Population, Part I, Table 22. The census gives no fig­
ures for aliens and citizens separately, in this group. 
In the same year, citizens and aliens of Japanese origin 
or descent were 93,717, of whom but 33,509 were aliens. 
H . Rep. No. 2124, 77th Cong., 2d Sess. (1942) pp. 91, 
96. I f  the same ratio of citizens to aliens applies to 
the ineligible aliens other than Japanese, as it probably 
does, there are no more than 1000 people other than 
Japanese aliens out of California’s 6,907,387 who 
suffer when the California legislators decide that a 
“ better”  definition of “ Japanese” — at least a more 
sophisticated one— is “ aliens ineligible to citizenship.”  
In the whole United States, 98 per cent of the ineligible 
aliens were Japanese.

Moreover, so far as commercial fishing is concerned, 
it is not clear that anyone other than Japanese aliens 
suffers when the more sophisticated definition is used. 
In 1935— a prewar year— the Bureau of Commercial 
Fisheries of California, in its annual report (Fish Bul­
letin No. 49) classified the 6007 licensees by nativity. 
Apart from Japanese, no other racial group ineligible 
to citizenship appears in the table (p. 143). Possibly



15

there are some in the “ scattered representatives of 
other nations, totaling 89 fishermen” , but equally pos­
sible, there are not. A t most there could be but 89.

Patently, therefore, the legislation is anti-Japanese 
both in purpose and in effect. Yu Gong Eng v. Trini­
dad, 271 U . S. 500. A s such, it is instantly suspect. 
Korematsu v. United, States, 323 U . S. 214, 216. It  
meets neither the rigorous standards of property to 
which legislation of this type must conform, Thomas v. 
Collins, 323 U . S. 516, 527, 532, nor the normal stand­
ards of reasonableness of statutory classification. Yick 
Wo v. Hopkins, 118 U . S. 356; Buchanan v. Warley, 
245 IT. S. 60. A ny alleged conservation purpose be­
comes even more baseless when the statute is considered 
in its true racial light. In  1940 California’s alien 
Japanese population numbered 33,059 out of a total 
population of 6,907,387. In  1941-1942, the last year 
when Japanese aliens could receive commercial fishing 
licenses from California, only 7 per cent of the alien 
fishermen were alien Japanese, a figure that had been 
constantly decreasing throughout the years. See Fish 
Bulletin No. 59, p. 21. Compare, for prior years, Fish 
Bulletin No. 57, p. 20; No. 58, p. 24. Only one rational 
conclusion is possible: the statute is concerned not with 
conservation, but with discrimination; not with saving 
the fish, but with saving the white fishermen. From 1943 
to the present, this statute has had only one object—  
destroy the “ menace”  of the Japanese.



16

III.
Section 990 of the F ish and Game Code of Cali­

fornia, I nsofar as I t P rohibits L icensing of P ersons 
I neligible for Citizenship, I s I nvalid B ecause of 
Conflict W ith  F ederal A uthority Over, and F ed­
eral P olicy W ith  R espect to, F isheries on the H igh 
Seas and Coastal W aters.

The decision of the court below is bottomed upon the 
proposition that the state may regulate the taking of 
ferae naturae “ owned”  by it (R . 36-37). Accordingly, 
it is argued, California as “ owner”  may restrict the 
taking of fish in coastal waters, and may further re­
strict the landing of fish, of the same species found in 
coastal waters, taken on the high seas. In  short, the 
California statute is sought to be sustained as the legiti­
mate conservation of State-owned property.

Petitioner has already shown that, even on that as­
sumed basis, the statute must fall. But Section 990 is 
invalid for another reason. It  is in conflict with Fed­
eral authority over, and federal policy with respect to, 
the fisheries sought to be regulated.

For effective conservation, and indeed for any con­
servation at all, the fisheries favored by California- 
based vessels must be treated as a unit. Fish Bulletin 
No. 15 (1929) pp. 50, 62. They cannot be divided by an 
artificial line between the “ high seas”  and coastal 
waters. The State’s own Department of Natural Re­
sources has stated that the California commercial catch 
of fish comes in part from areas south of the Mexican 
border, north of the Oregon boundary, and westward 
as far as Japan. Fish Bulletin No. 57 (1940) p. 27; 
Fish Bulletin No. 58 (1940) p. 29 ; Fish Bulletin No. 59



17

(1944) p. 29.3 One report stated, concerning the fishing 
grounds off the southern California coast (Fish B ul­
letin No. 15 (1929) p. 9) :

“ Although one fishery, it is arbitrarily cut into 
four parts by two imaginary lines drawn on the 
map. The boundary between the United States 
and Mexico when extended westward divides the 
area horizontally into northern and southern por­
tions, while the three mile limit running vertically 
cuts a three mile strip off the eastern edge of this 
fishing area. The fishermen, the fish, and the ocean 
currents pay little attention to these lines, and the 
only excuse for drawing them is in such cases as 
involve the levying of duty or determining state 
and national jurisdiction.”

The long history of international disputes and con­
ventions to regulate open-sea fishing, adverted to by 
this Court in United States v. Galif ornia, 332 U . S. 19, 
32, need not be repeated in detail at this point. More 
important here is the inadequacy of controlling fish­
eries by states on any theory of jurisdiction over coastal 
waters. Conservation of the Alaskan salmon fishery 
was found, in 1938, to depend on the uncertainties of a

8 California Marine Fisheries officials, proud of the range of the 
California tuna boats that, by 1934, had made “ Costa Rica, Pana­
ma and the Galapagos Islands . . . the common fishing grounds, ’ ’ 
(Fish Bulletin No. 44 (1935) p. 41; Fish Bulletin No. 49 (1937) 
p. 26) publicly regretted war-time restrictions on sailing tuna boats 
south of 10° N. Latitude. California, Department of Natural Re­
sources, Division of Fish and Game, Report for 1940-1942, p. 49. 
Conservation studies of the sardine and mackerel fisheries have 
involved the release of California-tagged fish off the coasts of 
Mexico and Oregon, and cooperation with the fisheries departments 
of Canada, Washington and Oregon, and with the United States 
Fish and Wildlife Service. Id. at 37, 38; 1942-1944 Report, at 
49, 50.



1 8

“ gentleman’s agreement”  with Japan. Jessup, The 
Pacific Coast Fisheries (1939) 33 A . J. I. L. 129, 132- 
133. The success of the Canadian-United States hali­
but conservation program was likewise “ threatened by 
the invasion of British and Norwegian fishing interests 
with floating refrigeration plants.”  Id. at 133. Sim­
ilarly, British attempts to regulate fishing outside the 
three-mile limit in Moray Firth were rendered ineffec­
tive, and eventually abandoned, because of the intran­
sigence of Norway. Id. at 135. And the attempt to 
draft a convention governing territorial waters at the 
international Codification Conference of 1930 failed 
because of inability to reconcile “ territorial waters”  
(coastal waters) and “ open sea”  fishing. Daggett, The 
Regulation of Maritime Fisheries by Treaty (1934) 28 
A . J. I. L. 693. Effective fishery conservation requires 
Federal action, either by the promotion of international 
convention and agreement, or by the assertion, backed 
by other appropriate Federal sanctions, of a pre­
emptive right to regulate fishing in designated areas. 
A s was stated by this Court in United States v. Cali­
fornia (332 U . S. at 35) :

“ whatever any nation does in the open sea, which 
detracts from its usefulness to nations, or which 
another nation may charge detracts from it, is a 
question for consideration among nations as such 
and not their separate governmental units.”

However, under the doctrine of United States v. Cal­
ifornia, supra, it is highly doubtful that California may 
constitutionally apply Section 990 of its Fish and Game 
Code even in coastal waters. Compare Toomer v. Wit- 
sell, October Term, 1947, No. 415. In the California 
case, this Court repudiated the doctrine of coastal State 
“ ownership”  of waters beyond the mean low-tide



19

marks. Accordingly, fish in the coastal waters are 
“ owned” , not by California, but by the United States 
as a whole. Whatever jurisdiction California may as­
sert over the taking of fish in this domain is exercised 
on behalf of the people of the United States. Cali­
fornia legislation restricting the taking of fish in 
coastal waters must, therefore, be framed in accord­
ance with national policy. Although United States v. 
California expressly preserved the power of the 
coastal States to exercise reasonable police power and, 
in particular, to regulate and conserve fish in coastal 
waters in the absence of overriding federal regulations, 
State jurisdiction in coastal waters is exercised, not by 
right, but by sufferance, in trust for the nation. A  fair 
reading of the California case necessitates the conclu­
sion that State regulation of coastal waters is invalid 
where it conflicts with an established federal policy, 
whether or not comprehensive federal occupation of 
the field by statute is found. In the instant case, how­
ever, Federal action has been sufficiently comprehen­
sive to satisfy even the more specific criteria of Hines 
v. Davidowitz, 312 U . S. 52, 68, as well as the doctrine 
necessarily to be drawn from the California case.

Federal occupation of the field begins with the Con­
stitutional guarantees of freedom to pursue any legiti­
mate occupation, without governmental discrimination 
because of race or color, as implemented by the specific 
language of Section 41 of Title 8, U . S. C .:

“ A ll persons within the jurisdiction of the United 
States shall have the same right in every State and 
territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security



20

of persons and property as is enjoyed by white 
citizens, and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and exactions of 
every kind, and to no other.”

The “ plain object”  of this statute was to make “ the 
rights and responsibilities, civil and criminal”  of all 
persons, and particularly of the colored races “ exactly 
the same”  as those of white citizens. Virginia v. Rives, 
100 U . S. 313, 318. Through the mechanism of first 
denying a license, the California statute subjects the 
Japanese alien who fishes for a living to punishment, 
pains, penalties and exactions— in the form of criminal 
sanctions— not imposed upon white fishermen.

Nor have the controversies which, as noted by this 
Court, have “ arisen among nations about rights to fish 
in prescribed areas,”  ( United States v. California, 332 
IT. S. at 32) been limited to the right to fish on the high 
seas. They have extended to the taking of fish within 
coastal waters. B rief for the United States in Support 
of Motion for Judgment, p. 87, United States v. •Cali­
fornia; Jessup, supra, at 136. The settlements of these 
controversies, by international negotiation and treaty, 
have cut across the artificial “ three-mile”  line, and 
have not imposed racial or citizenship limitations on 
the right of Americans to fish. The Bering Sea Fur 
Seal Convention (37 Stat. 1542) governs the coastal 
waters of Ureat Britain, Japan, Bussia and the United 
States. The North Atlantic fishery settlements open 
coastal waters of the United States and Ureat Britain 
to one another’s nationals. Daggett, supra, at 701; Brief 
for the United States, supra. The 1937 Halibut Treaty 
with Canada (50 Stat. 1351) and the Salmon Conven­
tion of 1930 (50 Stat. 1355) have provided for regula­
tion of fishing, on the high seas and in coastal waters,



21

by international commissions. Such instruments as the 
.Halibut Treaty have sought to preserve fishing rights, 
not solely for American citizens, but for the “ citizens 
and inhabitants”  of the United States.

In  1945 a Presidential Proclamation announced a 
national policy of establishing “ conservation zones” , 
under the jurisdiction of the federal government, gov­
erning waters traditionally regarded as “ coastal”  as 
well as the “ high seas” . Ho. 2668, September 28,1945, 
10 P. R. 12304. Moreover, the Proclamation indicated 
that when such fisheries have been developed by na­
tionals of more than one nation, international agree­
ment is the appropriate medium for fishery regulation.

B y international agreements the United States is 
also committed to a policy of non-discrimination. In  
Article 55c of the United Nations charter, this nation 
agreed to foster:

“ universal respect for, and observance of, human 
rights and fundamental freedoms for all without 
distinction as to race, sex, language or religion.”

B y Article 56, this nation pledged itself to take “ joint 
and separate action”  to achieve that objective.

Similarly, in the Act of Chapultepec, the United 
States joined with other W estern Hemisphere coun­
tries in undertaking to “  . . .  make every effort to pre­
vent . . .  all acts which may provoke discrimination 
among individuals because of race or religion.”  

Accordingly, the prohibition of fishing licenses to 
Japanese aliens— whether ostensibly in “ territorial”  
waters or on the “ high seas” — is at fatal variance with 
established United States policy concerning the right 
of access to the fisheries. This conclusion is underlined 
by our external policy applied to the Japanese people in



22

our present occupation of Japan. The new Constitu­
tion of Japan, adopted by the Japanese Government 
upon representations by General Douglas M acArthur’s 
Headquarters undertakes to guarantee that (Ch. 3, Art. 
X I I I )  :

“ A ll of the people are equal under the law and 
there shall be no discrimination in political, eco­
nomic, or social relations because of race, creed, 
sex, social status, or family origin.”

Manifestly, therefore, to permit the State of California 
to forbid licenses to Japanese fishermen in water within 
the Federal domain is a flagrant breach of our inter­
national commitments and policy, which can only serve 
as a source of friction and conflict between the United 
States and Japan, and thwart national efforts to secure 
international cooperation in fishery conservation.

CONCLUSION.

W herefore, the petition for a writ of certiorari to 
the Supreme Court of California should be granted.

Respectfully submitted,

A . L. W isest,
D ean A cheson,
Charles A . H orsicy, 
E rnest W . Jennes,

Counsel for Petitioner.
Saburo K ido,
F red Okrand,
F rank Chuman ,

Japanese American Citizens League,
Of Counsel.

January 16, 1948.







IN THE

iwprrmr (tart of ttjr Ittttrfc i>tatra
Octobee Teem, 1947

No. 533

TORAO TAKAH ASH I,
Petitioner,

vs.
FISH  AND GAME COMMISSION, LEE F. PAYNE, 
as Chairman thereof, W . B. W ILLIAM S, H ARVEY E. 
HASTAIN, and W ILLIAM  SILVA, as members thereof,

Respondents.

ON" WEIT OF CEETIOEAEI TO THE SUPEEME COTJBT 
OF THE STATE OE CAUEOBNIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AMICUS CURIAE

A meeican Civil Libeeties Union, 
Amicus Curiae.

Akthub Gaeeield Hays, 
Counsel.

Chaeles de Y. Elkus, 
Loken Millee,

Of the California bar,

Robeet M. Benjamin, 
Edwaed J. Ennis, 
Feedeeick B. Sussman, 

Of the New York bar.





I N D E X

PAGE
S t a t e m e n t  of t h e  Case ...............................................................  2

P o in t  I — T h e exclu s ion  o f  p e tit ion er, becau se  he is 
in e lig ib le  to c itizen sh ip , f r o m  the o ccu p a tion  o f  
fish in g  den ies h im  the equal p ro te c t io n  o f  the law s 3

P o in t  I I — T h e cou rt  b e lo w  erred  in  a p p ly in g  a p r e ­
su m p tion  o f  con stitu tion a lity  to  the statute here 
in v o lv e d  .........................................................................................  7

P o in t  I I I — T h e  d iscr im in a tion  e n fo r ce d  b y  state law  
a ga in st p e tit io n e r  on the g ro u n d  o f  ra ce  v io la tes  
the U n ited  N ation s  C h arter ............   8

C o n c lu sio n  .........................................................................    9

Table of Cases Cited

In  re  A h  C hong , 2 F ed . 733 (C .C .D . Cal., 1880) .............  6, 7

C lark e v. D eckenbach , 274 U . S. 392, 396 .........................  7

F o s te r -F o u n ta in  P a ck in g  C o. v. H a y d e l, 278 U . S.
1, 11 .............................................................. ....................................  6

H in es  v. D a v id ow itz , 312 U . S. 5 2 ............................................  7

‘ K o re m a tsu  v. U . S., 323 U . S. 214, 216 ....... ...................  8

M eC rea d y  v. V irg in ia , 94 U . S. 391 .................. ...............  6
M issou r i v. H olla n d , 252 U . S. 416 .......................................  9

N ie lson  v. J oh n son , 279 U . S . 47 .................... ..................... 9

O yam a  v. C a lifo rn ia , 332 H . S. 633, at 664-5 ............. 4, 5, 7, 9

T e r ra ce  v. T h om p son , 263 U . S . 197, at 2 2 1 ....................  5
T ru a x  v. R a ich , 239 U . S. 3 3 ......................................................  7



11

Statutes, Etc., Cited
PAGE

Fish and Game Code (Deering’s California Codes), 
Section 990 .................................................................... 2, 8

8 U.S.C., §703 3

Report of the Senate Fact-Finding Committee on
Japanese Resettlement, May 1, 1945, pp. 5-6..........  8

Stats. 1943, ch. 1100........................................................ 8

United Nations Charter, Article 55 c and 56; 59 Stat.
1046 (1945) ..................................................................  9

United States Constitution:
Article VI, Clause 2  ........................................ .......  9
Fourteenth Amendment .................. ....... .................3, 4, 6



IN THE

(Tmirt nt %  ilmti'b
October Teem, 1947

No. 533

------------..rma » Bn-----------—---

Tobao Takahashi,
Petitioner,

vs.

Fish and Game Commission, Lee F. Payne, as Chairman 
thereof, W. B. W illiams, Haevey E. Hastain, and W illiam 
Silva, as members thereof,

Respondents.

o n  w r i t  o f  c e r t i o r a e i  t o  t h e  s u p r e m e  c o u r t

OF T H E  STATE OF CALIFORNIA

B R IE F  O F  A M E R I C A N  C IV IL  L IB E R T IE S  U N IO N ,  
A M IC U S  C U R IA E

This brief is filed with the consent of the parties. The 
American Civil Liberties Union is devoted to the protec­
tion of all persons, citizens and aliens alike, in the enjoy­
ment of the fundamental civil rights which are guaranteed 
by the Constitution of the United States. One of its 
prime objectives is the elimination of inequalities based



2

on racial discrimination in the degree of recognition 
accorded such rights, and it believes that the present case 
involves a highly significant instance of such discrimina­
tion.

Statement of the Case

The judgment of the Supreme Court of California to 
be reviewed by this Court denies the application of peti­
tioner, a Japanese ineligible to citizenship in the United 
States, for a writ of mandate directing the Fish and Game 
Commission of the state to issue to him a commercial 
fishing license.

In its opinion in this case, 30 Cal. (2d) 719, 185 P. (2d) 
805, the court below, three judges dissenting, held valid 
Section 990 of the Fish and Game Code (Peering’s Cali­
fornia Codes), which provides as follows:

“ Persons required to procure license: To whom 
issuable. Every person who uses or operates or 
assists in using or operating any boat, net, trap, 
line, or other appliance to take fish, mollusks or 
crustaceans to be brought ashore at any point in 
the State for the purpose of selling the same in a 
fresh state, shall procure a commercial fishing 
license.

“ A commercial fishing license may be issued to 
any person other than a person ineligible to citizen­
ship. * # *”

In so deciding, the California Supreme Court reversed 
the holding of the Superior Court that the above statute 
constituted a denial of the equal protection of the laws 
guaranteed by the Fourteenth Amendment,

Petitioner, a resident of California for 35 years before 
his evacuation by military order in 1942, was from 1915



3

until the date of such evacuation engaged in the occupa­
tion of commercial fishing on the high seas, holding 
licenses from the State Fish and Game Commission as a 
commercial fisherman. Because he is ineligible to citizen­
ship solely by reason of his race, petitioner has now been 
denied the opportunity to earn a livelihood either by fishing 
in waters subject to the jurisdiction of the State of Cali­
fornia or by bringing into that state for sale fish taken 
by him in other waters.

POINT I

The exclusion of petitioner, because he is ineligible 
to citizenship, from the occupation of fishing denies 
him the equal protection of the laws.

Uninhibited by the constitutional limitations which the 
Fourteenth Amendment imposes on the states, the Con­
gress of the United States has denied to the members of 
certain races the privilege of becoming citizens by natural­
ization (8 U.S.C., §703). But a state derives no power 
whatever to impose racial discriminations upon resident 
aliens from the Congressional power to exclude some or 
all aliens from naturalization on a racial basis. The 
members of those races who are lawfully here, no less 

• than others, are in need of and entitled to the equal 
protection of the laws of the various states. To hold that 
because of their racial ineligibility to citizenship these 
people constitute a class by themselves at whom special 
legislation by the states may be aimed is nothing less than 
to deny them protection equal to that afforded other 
persons.



4

This Court at the current Term held unconstitutional 
California’s Alien Land Law as applied to effect an 
escheat of agricultural land conveyed to the citizen son 
of an alien Japanese, where the consideration for the 
transfer was paid by the Japanese father. Oyama v. 
California, 332 U. S. 633. The statute in question forbade 
aliens ineligible for American citizenship to acquire, own, 
occupy, lease, or transfer agricultural land. While the 
narrow holding of the Court was that the Alien Land Law 
deprived the citizen son of the equal protection of the 
laws and of his privileges as an American citizen by 
presuming that the transfer to him was made with intent 
to evade the law because the consideration was paid by 
his ineligible alien father, four Justices, concurring in two 
separate opinions, were of the view that in forbidding 
the ownership of land by an ineligible alien the law was 
unconstitutional as violating the equal protection clause 
of the Fourteenth Amendment. The court found it un­
necessary to reach that question. The concurring opinion 
of Mr. Justice Black considers the statute here in ques­
tion, barring alien Japanese from the fishing industry, 
as being on the same level with respect to the Fourteenth 
Amendment as the Alien Land Law, 332 IT. S. 633, at 
648-9.

A majority of the court below relied for the result 
reached in the instant case on its decision in People v. 
Oyama sustaining the constitutionality of the Alien Land 
Law, which was reversed by this Court in Oyama v. 
California, supra. Even were it conceded arguendo that 
a statute prohibiting the ownership of land by aliens 
ineligible to citizenship must at the present time be held 
constitutional, such a case has been distinguished from 
one involving a statute which would deny to aliens the



5

right to earn a living in a common occupation of the 
community. Terrace v. Thompson, 263 U. S. 197, at 221. 
Discrimination between aliens on the ground of race is 
hardly more justifiable than the discrimination between 
citizens on the ground of racial descent condemned by this 
Court in the Oyama case.

The argument of the state that the statute is not at 
least on its face solely discriminatory against Japanese 
and hence not race legislation of a kind proscribed by the 
equal protection clause of the fourteenth amendment is 
sheer sophistry. Assuming arguendo that persons of 
other races than Japanese are also barred, the state’s 
argument means in effect that any legislation to secure 
“ White supremacy”  could be constitutional since the 
discrimination falls equally on all non-white races. 
Merely to state this proposition is to see its fallacy and 
absurdity.

We are told by the majority opinion of the court below 
(185 P. (2d) 805, 812) that a classification which excludes 
from fishing privileges those aliens who are ineligible to 
citizenship is a reasonable conservation measure. That 
classification, however, is based not on the kinds of fish to 
be taken, or the season or the method or the quantity of 
the taking, but solely on the ancestry of the fisherman. 
We respectfully submit that such a classification has no 
rational relation to the purported conservatory intent of 
the legislature, and on its face is unlawfully discrimina­
tory.

The court below did not hold, nor have respondents 
contended, that the power to deny fishing privileges is 
free of constitutional restraint. The state’s interest in 
fish and game within its jurisdiction is a qualified owner­
ship, held in trust for the people of the state, under



6

which the taking and subsequent use may be regulated 
in the exercise of the police power for purposes of con­
servation—hut not for such other purposes as caprice or 
prejudice may suggest (see Foster-Fountain Paching Co. 
v. Hay del, 278 U. S. 1, 11).

Long ago a federal Circuit Court held invalid as 
against Chinese a California statute precisely comparable 
to that which has been sustained in the instant case. In 
re Ah Chong, 2 Fed. 733 (C.C.D. Cal., 1880). The statute 
there involved prohibited fishing for sale by persons in­
capable of becoming electors of the state. The Court in 
its opinion in that case recognized the proprietary right 
of the state in the preservation of its game fish, earlier 
enunciated by this Court in McCready v. Virginia, 94 
U. S. 391), which would permit the denial of fishing pri­
vileges to all persons not citizens of the state. It was 
held nevertheless that the discrimination among aliens 
violated both a treaty then existing between the United 
States and China, and the Fourteenth Amendment to the 
Federal Constitution. In words which epitomize our con­
tention here— substituting only “ Japanese”  for “ Chin­
ese” , the irrational winds of prejudice having shifted in 
the intervening years—the Court said (2 Fed. at 737):

“ The fourteenth amendment of the national con­
stitution provides that ‘ no state shall * * *
deny to any person within its jurisdiction the equal 
protection of the laws.’ To subject the Chinese 
to imprisonment for fishing in the waters of the 
state, while aliens of all European nations under 
the same circumstances are exempt from any pun­
ishment whatever, is to' subject the Chinese to 
other and entirely different punishments, pains, 
and penalties than those to which others are sub­
jected, and it is to deny to them the equal protec-



7

tion of the laws, contrary to those provisions of the 
constitution. ’ ’

Commenting on the Ah Chong case, this Court said in 
Clarice v. Deekenbach, 274 U. S. 392, 396 that it is an 
instance where “ the Fourteenth Amendment has been 
held to prohibit plainly irrational discrimination against 
aliens.”

We respectfully urge that the contrary holding of the 
Supreme Court of California in the instant case should 
be reversed.

POINT II

The court below erred in applying a presumption of 
constitutionality to the statute here involved.

The opportunity of all persons, whether citizen or 
alien, to find employment in the common occupations of 
the community is an important civil liberty which the 
states may not infringe. To allow denial of this oppor­
tunity by a state would in effect deny the possibility of 
settling to those whose admission Congress has permit­
ted. See Oyama v. California, 332 U. S. 633, 649 (con­
curring opinion). This Court has been solicitous to as­
sure the just treatment of aliens in whatever state they 
may reside. Truax v. Raich, 239 U. S. 33; Hines v. Davido- 
witz, 312 U. S. 52. That solicitude is needed for the pro­
tection of this petitioner who, upon returning to Cali­
fornia from his enforced wartime evacuation, has found 
himself excluded from his former occupation.

The instant case was decided upon the pleadings with­
out proof or suggestion of facts which would make such 
exclusion appear reasonable in the exercise of any power 
possessed by the state. This lack was supplied by the



8

application of a presumption of constitutionality (major­
ity opinion, 185 P. (2d) 805, 810). We submit that such 
a presumption has no place in this case where the civil 
rights of a racial minority are in issue. In Korematsu 
v. TJ. 8., 323 U. S. 214, 216 the need for such searching 
review was repeated in words plainly applicable to the 
instant case:

“ It should be noted, to begin with, that all legal 
restrictions which curtail the civil rights of a single 
racial group are immediately suspect. That is not 
to say that all such restrictions are unconstitutional. 
It is to say that courts must subject them to the 
most rigid scrutiny. Pressing public necessity may 
sometimes justify the existence of such regula­
tions; racial antagonism never can.”

P O IN T  III
The discrimination enforced by state law against 

petitioner on the ground of race violates the United 
Nations Charter.

Legislation such as that presently before the Court 
constitutes discrimination on the ground of race. The 
legislative history of the statute emphasizes that this is 
its purpose.* To permit enforcement of such a discrimi­
nation embodied in state law would conflict with the treaty 
obligation undertaken by the United States under the 
United Nations Charter, to “ promote * * * universal

*  S e c t io n  9 90  o f  th e  C a l i fo r n ia  F is h  a n d  G a m e  C o d e , fir s t  c o d i f ie d  in  1933, 
w a s  a m e n d e d  in  1943 t o  p r o v id e  th a t  “ A  c o m m e r c ia l  f ish in g  lice n s e  m a y  b e  issu ed  
to  a n y  p e rs o n  o th e r  th a n  a n  a lien  J a p a n e s e ” . S ta ts . 1943, ch . 1100. In  1945 th e  
p resen t w o r d s  “ a  p e r s o n  in e lig ib le  t o  c it iz e n s h ip ”  w e r e  su b stitu ted  f o r  “ an  a lien  
J a p a n e s e ” , f o l l o w i n g  a r e p o r t  b y  a  c o m m it te e  o f  th e  C a l i f o r n ia  S e n a te  th a t  su ch  
ch a n g e  w o u ld  p r o b a b ly  e lim in a te  th e  d a n g e r  th a t  th e  s ta tu te  w o u ld  b e  d e c la re d  
u n co n s titu t io n a l o n  th e  g r o u n d s  o f  d isc r im in a t io n . Report of the Senate Fact- 
Finding Committee on Japanese Resettlement, M a y  1, 1945, p p . 5 -6 .



9

respect for, and observance of, human rights and funda­
mental freedoms for all without distinction as to race, 
sex, language, or religion.”  United Nations Charter, 
Articles 55 c and 56; 59 Stat. 1046 (1945).

Since the foregoing obligation is under Article VI 
clause 2 of the Constitution, the supreme law of the 
land,* it follows that the statute must be denied enforce­
ment for this reason as well.

CONCLUSION

It is respectfully submitted that the decision of the 
California Supreme Court be reversed and the Cali­
fornia statute here involved be declared unconstitu­
tional.

Respectfully submitted,

A m e r i c a n  C i v i l  L i b e r t i e s  U n i o n , 

Amicus Curiae.

A r t h u r  G a r f i e l d  H a y s , 

Counsel.

C h a r l e s  d e  Y. E l k u s , 

L o r e n  M i l l e r ,

Of the California bar,

R o b e r t  M .  B e n j a m i n , 

E d w a r d  J.-E n n i s , 

F r e d e r i c k  B .  S u s s m a n , 

Of the New York bar.

*  Nielson v. Johnson, 279 U . S . 4 7 ;  Missouri v. Holland, 2 52  U . S . 416. F o r  
th e  p a r t ic u la r  a p p lica b ility  o f  th e  c ite d  C h a r te r  p ro v is io n s  to  a n ti-J a p a n e se  
le g is la t io n , see  Oyama v . California, 332 U . S . 633 , 649, 650, 673 ( c o n c u r r in g  
o p in io n s ) .



*  '
J r