Trudeau v. Barnes Brief for Plaintiff and Appellant

    United States Circuit Court of Appeals
FIFTH CIRCUIT

No. 6828

ANTOINE M. TRUDEAU,

versus

CHARLES S. BARNES,

Appellant,

Appellee.

Appeal from the United States District Court for the 
Eastern District of Louisiana. Hon. Wayne G. 

Borah, Judge.

BRIEF ON BEHALF OF A. M. TRUDEAU, PLAINTIFF 
AND APPELLANT.

H. W. ROBINSON,
Attorney for Appellant.

H A U S E R  P R iN T I N C  C O . .  N E W  O R L E A N S



SUBJECT INDEX

Statement of Case___

Assignment of Errors.. 

Argument __________

PAGE

_ 4 

-  12 

, 13

CASE INDEX

Act 116 of 1928, amending Act 271 of 1908----------- 10
Alabama Constitution of 1901, Article 8 Sec. 187---  17
Baltimore v. Radecke, 49 Maryland 217------------- 25
Constitution of Louisiana, 1921 Article 8, Subsections

c and d of Section 1--------------------------------- 2, 7
Chy Lung v. Freeman, 92 U. S. 275-------------------  23
Ex Parte Virginia, 100 U. S. 339.------------------------  23
Eighth U. S. Code Annotated, Section 43.-----------  2
Georgia Constitution of 1924, Article 2, Section 1— 16
Guinn & Beal v. U. S„ 238 U. S. 347_____________ 2, 19
Henderson v. Mayor of New York, 92 U. S. 259----  23
Meyers v. Anderson, 238 U. S. 368-------------------- 2, 20
Mississippi Code of 1930, Section 6 ^ 7 ------- -------  17
Mississippi Constitution of 1890, Article 12, Section

244 __________ ____________________________  17
Neal V. Delaware, 103 U. S. 370--------------------— ---------------- 23
North Carolina, Act 6 of 19^, Chapter 97----------- 15
Soon Hing v. Crowley, 113 U. S. 703-------------------  23
South Carolina Constitution of 1895, Section 4----  15
U. S. Code Annotated, Section 43---------  5
U. S. Revised Statutes, Section 1979-----------------  2
Williams v. Mississippi, 170 U. S. 213..---------21, 22, 24
Yick Wo V . Hopkins, 118 U. S. 356 (370)---- 4, 24, 26, 27



United States Circuit Court of Appeals
FIFTH CIRCUIT

No. 6828

ANTOINE M. TRUDEAU, 

versus

CHARLES S. BARNES,

Appellant,

Appellee.

Appeal from the United States District Court for the 
Eastern District of Louisiana. ^Hon. Wayne G. 

Borah, Judge.

BRIEF ON BEHALF OF A. M. TRUDEAU, PLAINTIFF 
AND APPELLANT.

SYLLABUS.

I.
A petition which charges that plaintiff, a colored man, 

was denied the right to register to vote by de­
fendant, a registrar of voters, because of the 
provisions of Subsections c and d, Section 1,



Article 8 of the Constitution of the State of 
Louisiana, of 1921, containing “the under­
standing clause,” which is charged was the 
substitute for the former “grandfather clause” 
alleged to be intended to discriminate against 
him because of his race and color, and to be 
contrary to the 14th and 15th amendments of 
the Federal Constitution, and demanding 
damages therefor, presented a cause of action, 
and its dismissal on an exception of no cause 
of action was erroneous. Guinn & Beal vs. 
United States, 238 U. S. 347; Meyers vs. An­
derson, 238 U. S. 368; R. S. U. S. 1979; 8th 
U. S. Code Annotated, Section 43.

II.
A petition which charges that plaintiff was denied reg­

istration as a voter by defendant and asking 
damages therefor, and alleging that the afore­
said provisions of the Louisiana Constitution 
imposes an arbitrary, unreasonable, and ca­
pricious qualification upon the right of the 
plaintiff to register and vote; and confer an 
unlimited, unguided, and arbitrary power on 
the Registrar of Voters and his deputies, to 
refuse him registration, and were so used 
because he is a negro, was, therefore, uncon­
stitutional and contrary to the 14th and 15th 
Amendments, presented a cause of action, 
and its dismissal on exception was errone­
ous. Guinn & Beal vs. United States, 238 U. S. 
347; Meyers vs. Anderson, 238 U. S. 368.



III.
A petition which alleged that plaintiff was refused reg­

istration as a voter, solely because of the 
“understanding clause” of the Louisiana Con­
stitution, was not exceptional for vagueness 
because it did not specifically allege; (a) that 
he was a resident of the precinct in which 
he offered to register; (b) that he under­
stands the duties and obligations of citizen­
ship under a republican form of government; 
(c) that he has made under oath administered 
by the registration officer, application for 
registration which contained the essential 
facts necessary to show that he was entitled 
to register and vote, which application was 
entirely written, dated, and signed by bim, 
in the presence of the registration officer, 
without assistance or suggestion from any 
person, or any memorandum whatever other 
than the form of the application; (d) that he 
is able to read any clause in the Constitution 
of the State of Louisiana, or of the United 
States, and give a reasonable interpretation 
of the clause actually indicated to him by the 
defendant, when he applied for registration; 
his petition having recited that he duly and 
correctly filled the blank application for reg­
istration; that he has always borne a good 
reputation, bas never been arrested or charged 
with any offense, had a grammar school and 
business college education, was a resident of 
the city for more than twenty years, and



from September 13, 1927, to December 31, 
1930, was a registered voter, and voted in 
practically all Federal, State and City elec­
tions during that period; the petition show­
ing in ample detail that he was refused reg­
istration solely and only because the Regis­
trar claimed he did not “understand” the 
clause of the Constitution submitted to him.

IV.
“For the very idea that one man may be compelled to 

hold his life, or the means of living, or any 
material right essential to the enjoyment of 
life, at the mere will of another, seems to be 
intolerable in any country where freedom 
prevails, as being the essence of slavery it­
self.”

Yick Wo V. Hopkins, 118 U. S. 370.

“Can a Court be blind to what must be necessarily 
known to every intelligent person in the 
State?” Idem. Argument for Plaintiff in 
Error, page 363.

STATEMENT OF THE CASE.

Antoine M. Trudeau, plaintiff and appellant, a col­
ored man, sued Charles S. Barnes, Registrar of Voters 
for the Parish of Orleans, in the District Court of the 
United States for the Eastern District of Louisiana for 
15000.00 damages, for illegally discriminating against 
him because of his race and color, by denying him reg­
istration as a voter on June 18, 1931, acting under color



of the “understanding clause” of the suffrage provision 
of the Louisiana Constitution of 1921.

The suit was brought under authority of Title 8, 
Section 43, U. S. Code Annotated, which reads:

“Every person who, under color of any stat­
ute, ordinance, regulation, custom, or usage, of 
any State or Territory, subjects, or causes to be 
subjected, any citizen of the United States or 
other person within the jurisdiction thereof to 
the deprivation of any rights, privileges, or im­
munities secured by the Constitution and laws, 
shall be liable to the party injured in an action 
at law, suit in equity, or other proper proceed­
ing for redress.”

Jurisdiction was conferred by Paragraph 14, Section 
41, Title 28, which reads:

“Of all suits at law or in equity authorized 
by law to be brought by any person to redress 
the deprivation, mider color of any law, statute, 
ordinance, regulation, custom, or usage, of any 
State, of any right, privilege, or immunity, se­
cured by the Constitution of the United States, or 
of any right secured by any law of the United 
States providing for equal rights of citizens of 
the United States, or of all persons within the 
jurisdiction of the United States.”

The petition recited that plaintiff is a member of 
the colored or negro race, was born in Louisiana in 
1890, has always resided there, was for twenty years 
prior to his application to register, a resident of New 
Orleans, and for four years prior to December 31, 1930,



6

was a registered voter in that city, and voted in prac­
tically all elections.

On June 18, 1931, he applied to defendant, the duly 
commissioned Registrar of Voters for New Orleans, 
was furnished with the registration blank form, which 
he duly and correctly filled out, in his own writing, 
giving his name, place and date of birth, age, vvard, resi­
dence, and all the data required thereon, and returned 
the form to the defendant, who then demanded that 
he read the “understanding clause” ; which is as follows:

“Said applicant shall also be able to read 
any clause in this Constitution, or the Constitu­
tion of the United States, and give a reasonable 
interpretation thereof” ;

and that he explain the meaning of the paragraph. That 
plaintiff correctly read the said section, and sought to 
explain its meaning, but the said defendant arbitrarily 
declared that plaintiff had not perfectly understood and 
explained the meaning thereof, and refused your peti­
tioner the right to register.

In Louisiana registration is an essential prerequisite 
for voting, and new registration is required every four 
years.

The petition declared that plaintiff had a public 
school and business college education, that he reads 
and writes English fluently, is manager of a life insur­
ance company, has always borne a good reputation, and 
was in every way qualified to vote. That defendant 
based his refusal to register plaintiff solely and entirely 
upon the so-called “understanding clause” contained in



Subsection (c) of Section 1 of Article VIII of the Con­
stitution of the State of Louisiana adopted in the city 
of Baton Rouge on June 18, 1921. The said Section 1 
reads as follows:

“After January 1, 1922, the right to vote in 
Louisiana shall not exist except under the provi­
sions of this Constitution.

“Every citizen of this State and of the United 
States, native born or naturalized, not less than 
twenty-one years of age, and possessing the fol­
lowing qualifications, shall be an elector, and 
shall be entitled to vote at any election in the 
State by the people:

“ (a) He shall have been an actual bona fide 
resident of the State for two years, of the parish 
one year, of the municipality in municipal elec­
tions four months, and of the precinct, in which 
he offers to vote, three months next preceding 
the election; provided, that removal from one 
precinct to another in the same parish shall not 
operate to deprive any person of the right to 
vote in the precinct from which he has removed 
until three months after such removal; provided, 
that removal from one parish to another shall 
not deprive any person of the right to vote in the 
parish from which he has removed for district 
officers to be elected in a district which includes 
the parish to which he has removed, or for State 
officers, w'hether the parish be in the same dis­
trict or not, until he shall have acquired the right 
to vote for such officers in the parish to which 
he has removed.

“ (b) He shall be, at the time he offers to 
vote, legally enrolled as a registered voter on his 
own personal application, in accordance with



8

the provisions of this Constitution, and the laws 
enacted thereunder.

“ (c) He shall be of good character and shall 
understand the duties and obligations of citizen­
ship under a republican form of government. 
He shall be able to read and write, and shall 
demonstrate his ability to do so when he applies 
for registration by making, under oath, admin­
istered by the registration officer or his deputy, 
written application therefor, in the English lan­
guage, or his mother tongue, which application 
shall contain the essential facts necessary to show 
that he is entitled to register and vote, and shall 
be entirely written, dated, and signed by him, 
except that he may date, fill out, and sign the 
blank application for registration hereinafter pro­
vided for, and, in either case, in the presence of 
the registration officer or his deputy, without 
assistance or suggestion from any person or any 
memorandum whatever, other than the form of 
application hereinafter set forth; provided, how­
ever, that, if the applicant be unable to write his 
application in the English language, he shall 
have the right, if he so demands, to write the 
same in his mother tongue from the dictation of 
an interpreter; and, if the applicant is unable 
to write his application by reason of physical 
disability, the same shall be written at his dic­
tation by the registration officer or his deputy, 
upon his oath of such disability.

“Until and unless otherwise provided bv law, 
the application for registration above provided 
for shall be a copy of the following form, with 
the proper names, dates, and numbers substi­
tuted for the blanks appearing therein, to-wit: 

‘I am a citizen of the State of Louisiana.
My name is Mr____ __ ___, Mrs...



Miss__________
(or country) of-
of—___ _______

. I was born in the State
______Parish (or county)
_ on the________ day of

______________ in the year_____  I am now
___________ ^-.years __________months and
_________days of age. 1 have resided in this
State since_____ _______, in this parish since
________________ and in Precinct No----------
Ward No______  since__ ____________ , and
I am not disfranchised by any provision of 
the Constitution of this State.’
“Said applicant shall also be able to read 

any clause in this Constitution, or the Constitu­
tion of the United States, and give a reasonable 
interpretation thereof.

“ (d) If he is not able to read or write, then 
he shall be entitled to register if he shall he a 
person of good character and reputation, at­
tached to the principles of the Constitution of 
the United States and of the State of Louisiana, 
and shall be able to understand and give a rea­
sonable interpretation of any section of either 
Constitution when read to him by the registrar, 
and he must be well disposed to the good order 
and happiness of the State of Louisiana and of 
the United States and must uirderstand the duties 
and obligations of citizenship under a republican 
form of government.

“ (e) He must in all cases be able to estab­
lish that he is the identical person whom he rep­
resents himself to be when applying for registra­
tion, and when presenting himself at the polls 
for the purpose of voting in any election or pri­
mary election.”

The petition charged that the Louisiana “under­
standing clause” was enacted solely to prevent negro



10

residents of the State, otherwise qualified to vote, from 
registering and depriving them solely on account of 
their race and color of the right to vote at all Federal, 
State and local elections. The clause was a device in­
vented as a substitute for the “grandfather clause” of 
the Louisiana Constitution of 1898, which was intended 
to exclude from the suffrage all illiterate negroes while 
granting it to illiterate whites. This clause was nulli­
fied by the decisions in the 238 United States Supreme 
Court Reports, decided in 1915.

Plaintiff charged that defendant utilized this clause 
to deprive him and large numbers of other negro citizens 
from registering as voters solely because of their race 
and color. He annexed tables showing the white and 
negro population of Louisiana, by parishes, and paral­
lel figures showing the registration of voters. These 
showed 1,283,250 native whites, and 776,326 negroes. Of 
these there were registered in 1930, 233,241 literate 
whites, and 1669 literate negroes, 17,778 illiterate whites 
and 7 illiterate negroes.

It was alleged that the “understanding clause” was 
unconstitutional because contrary to the 14th Amendment 
of the Federal Constitution, in that it deprived him and 
other negro citizens of life, liberty and property with­
out due process of law, and denied him and them of the 
equal protection of the laws; and that it was contrary 
to the 15th Amendment, because it denied him and 
them the right to register and vote, because of their 
race and color.

The petition cited as an instance of property rights 
affected that Act 116 of 1928, amending Act 271 of 1908,



11

of the State of Louisiana, limited the employment on 
all public work in Louisiana to duly qualified voters 
of the State.

The petition instanced as an example of defendant’s 
arbitrary and discriminatory enforcement of the suf­
frage law, that in the First Precinct of the Fifth Ward of 
New Orleans, composed almost entirely of foreigners 
and children of foreign-born parents, few of whom 
speak, read and write English, over 200 voters are reg­
istered.

For a second cause of action, plaintiff reiterated 
the recitals of his petition, and charged that the suffrage 
clauses complained of imposed an arbitrary, unreason­
able, and capricious qualification upon the right of 
plaintiff and other citizens of Louisiana to register and 
vote; and conferred upon defendant an unlimited, un­
guided, and arbitrary power to refuse him and them 
the right to register and to deprive them at will of the 
right to vote; and was used by defendant solely as a 
cloak to deprive him of the right to vote because of his 
race and color.

Defendant filed exceptions of prematurity, imma­
teriality, impertinence of pleading, vagueness, and no 
cause of action. He asked under his exception of im­
pertinence that there be stricken Article 8, which 
charged that the “understanding clause” enacted in 1921, 
was a device to exclude negroes from the ballot, because 
of the 1915 decision annulling the grandfather clause in 
the 1898 Constitution; the 10th and 11th articles recit­
ing the population and vote registration of Louisiana, 
Article 15, that defendant registered over 200 persons



12

in the First Precinct of the Fifth Ward, many of whom 
were unahle to read, write, or speak English; and part 
of Article 19, which charged that defendant and other 
registrars of voters of Louisiana, used the understand­
ing clause to deprive large numbers of negro citizens of 
the right to vote.

The exception of vagueness was leveled at the fail­
ure of the petition to give the names of the large num­
ber of negro citizens who had been deprived of regis­
tration, and the names of those who deprived them. It 
likewise demanded the names of the voters of the First 
Precinct of the Fifth Ward, who had been improperly 
registered by defendant.

The case was argued on the exceptions of defend­
ant. The district judge in a written opinion (Tr. 24) 
maintained the exception of no cause of action, and 
plaintiff appealed.

ASSIGNMENT OF ERRORS.

The assigned errors in the opinion and decree of 
the district judge w'ere that he failed to hold the under­
standing clause in the suffrage article of the Louisiana 
Constitution contrary to the 14th and 15th Amendments; 
that he failed to hold that the understanding clause was 
historically the successor and substitute of the grand­
father clause, and like it intended to discriminate against 
negro citizens solely on account of race and color; and 
that he failed to hold that the understanding clause 
was arbitrarj' and discriminatory because of race and 
color, and contrary to the 14th and 15th Amendments.



13

ARGUMENT.

The petition in this case was drawn with the tran­
script in Anderson vs. Myers, before the writer.

A certified copy of the record in the Circuit Court 
for the District of Maryland disclosed that the suit was 
filed on July 30, 1909, about six weeks after the plain­
tiff had applied for and was refused registration. In 
that brief period no election was charged to have been 
held, and the damages were demanded not because the 
plaintiff had been denied the right to vote, but that he 
had been denied the right to register and qualify to 
vote. The pleadings in that case having been approved 
by the Supreme Court of the United States it would 
seem that this is the most effectual answer to the plea 
of the defendant that in the instant case plaintifCs suit 
was premature, because no elections took place between 
the time of refusal of registration and the date of the 
filing suit.

The opinion of the district judge criticizes the lit­
erary quality of plaintiff’s petition in several respects, 
more particularly in that plaintiff alleged that he was 
a duly and legally qualified citizen and voter, and that 
he duly and properly filled out the written application 
for registration without giving the precise words with 
which he filled the blanks. Especially he criticized the 
petition because the plaintiff did not plead that he had 
correctly interpreted the article of the Constitution sub­
mitted to him for understanding nor recite the precise 
words with which he gave his interpretation; but the 
district judge did not maintain any of the exceptions 
except that of no cause of action; and the constitution-



14

ality of the “understanding clause” is the real and only 
question at issue.

Before we pass to the discussion of the major ques­
tion we desire to say that we specifically charged in our 
petition that the only reason why we were refused reg­
istration was because of the “understanding clause” 
and that was the only element as to qualification of the 
plaintiff which was tendered by the suit. As to the 
manner in which he interpreted the article of the Con­
stitution submitted to us we submit that our pleading 
is the only logical and correct one. Had we pleaded 
that we clearly interpreted the article, and for that rea­
son we were entitled to registration, we would be 
pleading the legality and constitutionality of the “under­
standing clause” and asking for its protection. Of 
course, the very opposite was our purpose. We plead­
ed and charged that the “understanding clause” was 
wholly contrary to the Federal Constitution, that the 
Registrar of Voters had no right to demand of us com­
pliance with the “understanding clause” ; that his en­
forcement of the Louisiana Constitution in this respect 
was oppressive, arbitrary, and illegal, and this being 
our position, it was, of course, unnecessary that we 
should plead the exact language in which we sought to 
interpret the article of the Constitution.

The interpretation of the Constitution by the Regis­
trars of Voters in Louisiana is that they have the au­
thority to give the understanding test or to withhold it, 
and that the Constitution gives them this discretion. In 
other words, the deputy registrar of voters, who is usual­
ly a man of very mediocre civic status and of parallel



15

education, does not ask the justice of the Supreme 
Court of Louisiana nor the members of the bar, nor, in 
fact, anyone of the proper race and color, to interpret 
the Constitution; and the interpretation of the Consti­
tution by the Registrars is that they have the right to 
require the applicant to interpet the article of the Con­
stitution or not just as they see fit.

UNCONSTITUTIONALITY OF THE UNDERSTAND­
ING ULAUSE.

In the last decade of the nineteenth century, the in­
ventive minds of the South turned toward the develop­
ment of a suffrage law which would disfranchise all 
negroes, both literate and illiterate, yet retain the right 
to vote in both classes of whites.

The 15th Amendment made direct discrimination 
unconstitutional.

Two projects were offered: The so-called “grand­
father clause” and the “understanding clause.”

Louisiana, in its Constitution of 1898, adopted the 
former. In 1915 the Oklahoma and Maryland laws, em­
bracing the “grandfather clause” were declared null.

North Carolina, Chapter 97, Act 6 of 1920, Consoli­
dated Statutes, retains the “grandfather clause” as to il­
literate voters, but the “understanding clause” has not 
been adopted.

South Carolina, 1895 Constitution, Section 4, con­
tains the understanding clause, effective only until 
January 1, 1898. This declaration is as follows:



16

“ (c) Qualification for Registration up to 
January 1898, Test of Registered Voters. ‘Up to 
January 1, 1898, all male persons of voting age 
applying for registration who can read any sec­
tion of this Constitution submitted to them by 
the registration officer, or understand and ex­
plain it when read to them by the registration 
officer, shall be entitled to register and become 
electors. A separate record, etc.’

“ (d) Qualification for registration after Jan­
uary, 1898. Any person who shall apply for reg­
istration after January first, 1898, if otherwise 
qualified, shall be registered; PROVIDED, that 
he can both read and write any Section of this 
Constitution submitted to him by the registra­
tion officer or can show that he owns and has 
paid all taxes collectible during the previous 
year on property in this State assessed at $300.00 
or more.”

In Georgia: Article 2, Section I et seq. of the Con­
stitution of 1924, and Code Sections 6395 et seq. adopted 
the understanding clause in the following terms:

“2. All persons lawfully descended from 
those embraced in the classes enumerated in the 
subdivision next above; or

“3. All persons who are of good character 
and understand the duties and obligations of citi­
zenship under a republican form of government; 
or

“4. All persons who can correctly read in 
the English language any paragraph of the Con­
stitution of the United States or of this State and 
correctly write the same in the English language 
when read to them by any one of the registrars, 
and all persons who solely because of physical



17

disability are unable to comply with the above 
requirements but who can understand and give 
a reasonable interpretation of any paragraph of 
the Constitution of the United States or of this 
State that may be read to them by any one of 
the registrars.”

ALABAMA: The Constitution of 1901, Article 8, 
Section 187, provided, unless disqualified under this ar­
ticle, persons registering before January 1, 1903, shall 
remain electors for life and shall not be required to 
register again unless they change their residence. The 
understanding clause was not adopted.

MISSISSIPPI: The Constitution of 1890, Article 12, 
Section 244, adopted the understanding clause by these 
provisions:

“On and after January 1, 1892, every elector 
shall in addition to the foregoing qualifications, 
be able to read and write any section of the 
Constitution of this State; or he shall be able to 
understand the same when read to him, or give 
a reasonable interpretation thereof.”

And Section 6207 of the Mississippi Code of 1930, 
also limits suffrage to those who “read” or if unable 
to read, understand or give a reasonable interpretation, 
etc.

FLORIDA, ARKANSAS, TENNESSEE and TEXAS 
have no understanding qualification.

The Louisiana understanding clause differs from 
all the others we have examined, in that it prescribes 
as a mandatory requirement that the applicant for



18
registration, in addition to being able to read and write 
“shall also be able to read any clause of this Constitu­
tion, or the Constitution of the United States, and give 
a reasonable interpretation thereof;” or if he is illiterate, 
he “shall be able to understand and give a reasonable 
interpretation of any section of either Constitution when 
read to him by the Registrar.”

Plaintiff has pleaded that he reads and writes flu­
ently, that he was registered during the four year period 
just prior to the year in which he was refused registra­
tion, and, accordingly, he is legally qualified to register 
and vote under the present laws of Louisiana, if the 
understanding clause is eliminated.

That the “understanding clause” has just the effect 
intended at the time of its enactment, he shows by tabu­
lating in Article X of his petition, the white and negro 
population, by parishes, of Louisiana, and the white and 
negro registrants. Thus of a total of 1,318,170 native and 
foreign born whites in Louisiana, in 1930, there were 
248,261 male and 113,630 female registered white voters; 
and of 776,326 negro population, 1,954 male, and 325 
female registrants. Of these 17,778 whites and 7 negroes 
signed by mark. Mathematically .274 white voters, 
.000293 negro voters per population—274 out of a thou­
sand whites, 3 out of a thousand negroes.

The “understanding clause” enables the registrar, 
notwithstanding it is mandatory', to neglect to administer 
it, where he wills, and to utilize it to refuse suffrage to 
the respectable law-abiding and educated negro.

Plaintiff has illustrated proof of his charge that the 
“understanding clause” is not applied to whites, by



19

showing that in the first precinct of the Fifth Ward of 
New Orleans, over 200 voters were registered by de­
fendant, nearly all of whom are foreigners, or sons of 
foreign-born parents, few of w'hom read or even speak 
English correctly, and substantially not one in the en­
tire precinct could correctly comply  ̂ with the “under­
standing clause.”

The present case is free of the difficulties in Guinn 
V. United States, 238 U. S. 354, where it was held that 
the educational qualification was so completely inter­
related with the “grandfather clause” that the nullity of 
the latter carried the nullity of the former. We have 
no quarrel with the educational test in the Louisiana 
law.

Our attack on the “understanding clause” is two­
fold:

(1) That, in the language of the opinion in Guinn 
m. United States (p. 361) “it involves an unmistakable, 
although it may be a somew*hat disguised, refusal to 
give effect to the prohibitions of the 15th Amendment 
by creating a standard which it is repeated but calls to 
life the very conditions which that amendment was 
adopted to destroy, and which it had destroyed.”

(2) That it subjects plaintiff to an arbitrary, un­
reasonable, and capricious qualification of his ri^ht to 
register and vote, and confers on defendant an unlim­
ited, unguided, and arbitrary power to refuse plaintiff 
the right to register and vote, solely on account of his 
race and color; by conferring on the Registrar authority 
to give or withhold the test; and giving it, to declare the 
plaintiff’s interpretation wrong.



:20

The “understanding clause” of the Louisiana Con­
stitution is not the only pitfall, in this mechanism, which 
seems to give, but really withholds.

A further provision in the section authorizes appli­
cant to file suit in the district court, without costs, to 
test his right to vote. The case must be tried before a 
jury of 12, nine of whom must concur to reach a ver­
dict. The Court may grant one new trial by jury. “In 
no case shall any appeal lie or any other Court exercise 
the right of review.”

The doors of the State courts are, therefore, closed 
for a test of the constitutionality of the “understanding 
clause.” It will readily be appreciated how impossible, 
any but the merest handful of citizens could resort to 
the courts for relief. If the five district courts of New 
Orleans devoted their entire dockets to the trial of such 
cases during the four trial days per week, only twenty 
citizens per week could obtain a hearing. In the ten 
months of the court session, less than 900 such cases 
could be tried, even assuming that all the other business 
of crowded dockets was set aside.

In Louisiana, the right to register is an important 
property right to those seeking employment on public 
work. Act 116 of 1928, amending Act 271 of 1908, limits 
employment of mechanics on all public work of State, 
City, or Governmental agencies, to qualified voters of 
Louisiana. Exceptions are granted only when the Gov­
ernor, Mayor, or other governmental officer fails when 
called upon, to furnish qualified voters.

We submit that Myers us. Anderson is complete au- 
tliority in this case for jurisdiction, for quantum if there



21

is a cause of action, and for the principle that what is 
necessarily implied by a statute, is as much a part of it 
as what is expressed.

But, it is answered, Oklahoma and Annapolis adopt­
ed a standard for qualification for voting, based upon 
the Suffrage requirements of 1868, when the only voters 
were whites. The inclusion of that standard was a vio­
lation of the 15th Amendment, even though the instant 
statute did not mention race or previous condition of 
servitude.

The trial judge deemed Williams vs. Mississippi, 
170 U. S. 213, a conclusive contra authority herein.

It is true that the “understanding clause” of the 
Mississippi suffrage system received a sort of negative 
approval, a failure of utter condemnation. But the issue 
was only remotely before the Court. A negro murderer, 
condemned by the State Court, sought that last clear 
chance, an appeal to the Federal courts in the plea that 
men of his race were excluded from the juries which 
indicted and convicted him. The Court in denying him 
liberty, declared that his pleadings charged that Mis­
sissippi’s laws intended discrimination, that they afford­
ed op])oriunity to registration officers to discriminate, 
but there was no sufficient showing of carrying such 
intent into execution, and that it was essential in order 
that such laws be held contrary to the amendments, that 
actual execution of the intent, be amply shown. The 
Court said in this case;

“It cannot be said, therefore, that the denial 
of the equal protection of the laws arises primari- 
Iv from the constitution and laws of Mississippi,



22

nor is there any sufficient allegation of an evil 
and discriminating administration of them. The 
only allegation is “  * * by granting a discre­
tion to the said officers, as mentioned in the sev­
eral sections of the constitution of the State, and 
the statute of the State adopted under the said 
constitution, the use of which discretion can be 
and has been used by said officers in the said 
Washington County to the end here complained of 
to-wit, the abridgment of the elective franchise 
of the colored voters of Washington County, that 
such citizens are denied the right to be selected 
as jurors to serve in the Circuit Court of the 
county, and that this denial to them of the right 
to equal protection and benefits of the laws of the 
State of Mississippi on account of their color and 
race, resulting from the exercise of the discre­
tion partial to the white citizens, is in accordance 
with and the purpose and intent of the framers 
of the present constitution of said State. * * *>

“It will be observed that there is nothing di­
rect and definite in this allegation either as to 
means or time as affecting the proceedings against 
the accused. There is no charge against the offi­
cers to whom is submitted the selection of grand 
or petit jurors, or those who procure the lists of 
the jurors. There is an allegation of the pur­
pose of the convention to disfranchise citizens of 
the colored race, but with this we have no con­
cern, unless the purpose is executed by the con­
stitution or laws or by those who administer 
them. * * *”

And in three sentences, the Court gives the reason­
ing for its refusal to interfere in the Williams case:

“Though the law itself be fair on its face 
and impartial in appearance, yet, if it is applied



23

and administered by public authority with an 
evil eye and an unequal hand, so as practically 
to make unjust and illegal discriminations be­
tween persons in similar circumstances, material 
to their rights, the denial of equal justice is still 
within the prohibition of the Constitution. This 
principle of interpretation has been sanctioned 
in Henderson v. Mayor of New York, 92 U. S. 259; 
Chy Lung v. Freeman, 92 U. S. 275; Ex parte Vir­
ginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 
370; and Soon Hing v. Crowley, 113 U. S. 703.

“This comment is not applicable to the con­
stitution of Mississippi and its statutes. They do 
not on their face discriminate between the races, 
and it has not been shown that their actual ad­
ministration was evil, only that evil was possible 
under them.”

Contrast now the paucity of pleading as to facts of 
discrimination on account of race, in the Williams case, 
with those in the present suit. We believe we have 
shown a case of a race rebuffed in its effort to gain 
recognition for educational endeavor, lawful living, clean 
citizenship.

It matters not how high his grade of civilizition, 
the arbitrary discouragement of deprivation awaits the 
negro under the understanding clause. Plaintiff’s peti­
tion shows with abundant detail the working effect of 
the statute—1669 negroes who can read and write regis­
tered out of 776,326 population, 17,778 white who can­
not read or write out of a population of 1,318,170.

The Mississippi understanding statute applies only 
to illiterates; the Louisiana statute applies both to the 
illiterate and the literate,—if they are negroes.



24

The petition charges for a first cause of action that 
the defendant was liable because he arbitrarily and un­
constitutionally enforced an article of the Louisiana 
Constitution to deprive plaintiff of registration as a 
voter, when this article was contrary to the 15th Amend­
ment, and for a second cause of action, because it was 
contrary to the 14th Amendment.

Plaintiff has shown in his pleadings that he is a 
negro, previously registered as a voter, a citizen with a 
good record, more than ordinarily educated, refused 
registration because of the understanding clause, that in 
43 out of the 62 parishes in Louisiana no negroes at all 
are registered, that of the others, two parishes have one 
negro each registered, four parishes have two negroes 
registered, two have three each. Outside of New Or­
leans, no parishes have more than 20 registered negroes, 
and only eight more than ten such registrants.

Plaintiff has charged that the test is applied to ne­
groes and omitted as to whites, and instances an elec­
tion precinct in New Orleans of over 200 white regis­
trants, practically all of whom are unable to correctly 
read or speak English, or to give a reasonable interpre­
tation of any part of the Constitution.

All of which is an abundant showing in the language 
of Williams v. Mississippi, omitting the negative, while: 
“they do not on their face discriminate between the 
races, and it has been shown that their actual adminis­
tration was evil, and that evil was possible under them.”

Yick Wo Hopkins, 118 U. S. 356, stands out as 
the best expression of the doctrine that statutes may



25

violate the constitution by their method of administra­
tion.

Citing Baltimore v. Radecke, 49 Maryland 217, which 
involved the authority of the Mayor to give or withhold 
permits to operate steam engines in the city limits, the 
opinion quotes:

“But it commits to the unrestrained wdll of 
a single public officer the power to notify every 
person who now employs a steam engine in the 
prosecution of any business in the city of Balti­
more, to cease to do so, and, by providing com­
pulsory fines for every day’s disobedience of 
such notice and order of removal, renders his 
power over the use of steam in that city practical­
ly absolute, so that he may prohibit its use alto­
gether. But if he should not choose to do this, 
but only to act in particular cases, there is noth­
ing in the ordinance to guide or control his 
action. It lays down no rules by which its im­
partial execution can be secured or partiality 
and oppression prevented. It is clear that giving 
and enforcing these notices may, and quite likely 
will, bring ruin to the business of those against 
whom they are directed, while others, from whom 
they are withheld, may be actually benefited by 
what is thus done to their neighbors; and, when 
we remember that this action or non-action may 
proceed from enmity or prejudice, from partisan 
zeal or animosity, from favoritism and other im­
proper influences and motives easy of conceal­
ment and difficult to be detected and exposed, 
it becomes unnecessary to suggest or to comment 
upon the injustice capable of being brought un­
der cover of such a power, for that becomes ap­
parent to every one who gives to the subject a



26

moment’s consideration. In fact, an ordinance 
which clothes a single individual with such pow­
er hardly falls within the domain of law, and we 
are constrained to pronounce it inoperative and 
void.”

How like the power committed to the Registrar of 
Voters of Louisiana. With no definition of their powers, 
no prescription as to application, no limits to power to 
give or to withhold the right to a voice in government, 
the Louisiana statute says the registrar may make voters 
where he will, and withhold where he desires, without 
limit, rule, or guidance.

As said hy counsel in this case—page 363: “Can a 
Court he blind to what must be necessarily known to 
every intelligent person in the State?” Do not all know 
that the “understanding clause” was the left-handed off­
spring of the illegitimate “grandfather clause?” The 
Constitutional Convention which adopted this ordinance, 
debated it only in executive session, and we have no 
volume of debates declaring its purpose. But that pur­
pose was so generally known and accepted, as to require 
no label. A poll-tax was not sufficient, an educational 
test was not sufficient. There must be discrimination, 
and arbitrary unreasoning, strong-arm discrimination 
to keep out the educated black, and let in the unedu­
cated white.

The Yick Wo case in vehement language, carries 
these facts to the inevitable conclusion, that omission of 
the words declaring race discrimination, does not save 
a law, inevitably designed for that purpose, and invaria­
bly so administered. This is the verbiage:



27

“In the present cases we are not obliged to 
reason from the probable to the actual, and pass 
upon the validity of the ordinances complained 
of, as tried merely by the opportunities which 
their terms afford, of unequal and unjust dis­
crimination in their administration. For the 
cases present the ordinances in actual operation, 
and the facts shown establish an administration 
directed so exclusively against a particular class 
of persons as to warrant and require the conclu­
sion, that, whatever may have been the intent of 
the ordinances as adopted, they are applied by 
the public authorities charged with their admin­
istration, and thus representing the State itself, 
with a mind so unequal and oppressive as to 
amount to a practical denial by the State of that 
equal protection of the laws which is secured to 
the petitioners, as to all other persons, by the 
broad and benign provisions of the Fourteenth 
Amendment to the Constitution of the United 
States. Though the law itself be fair on its face 
and impartial in appearance, yet, if it is applied 
and administered by public authority with an evil 
eye and an unequal hand, so as practically to 
make unjust and illegal discriminations between 
persons in similar circumstances, material to 
their rights, the denial of equal justice is still 
within the prohibition of the Constitution. * * *”

An excepton of no cause of action admits for its 
purposes the allegations of the petition, and taking our 
allegations as a statement of the case, we have our facts 
confessed. To this situation we apply the concluding 
paragraph of the Tick lUo case:

The fact of this discrimination is 
admitted. No reason for it is shown, and the



28

conclusion cannot be resisted, that no reason for 
it exists except hostility to the race and national­
ity to which the petitioners belong, and which in 
the eye of the law is not justified. The discrimi­
nation is, therefore, illegal, and the public ad­
ministration which enforces it is a denial of the 
equal protection of the laws and a violation of 
the Fourteenth Amendment of the Constitution.”

We submit that tested by its genealogy, by its con­
temporary history, by its internal complexity, with un­
limited and undefined authority to registrars to test or 
not to test, to give a voice in government, or withhold 
suffrage, with court process beyond the nisi prius court 
expressly denied, with a demonstrated result after years 
of operation of practically complete elimination of ne­
gro registration in Louisiana—with no negro voters in 
three-fourths of the parishes—the .mala fides of the “un­
derstanding clause” has been demonstrated.

And we accordingly ask reversal.

Respectfully submitted.

H. W. ROBINSON.
Attorney for A. M. Trudeau, 

Plaintiff and Appellant.



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