Nixon v. Condon Brief on the Merits in Support of the Petitioner, L.A. Nixon

    ^ujiremr (£ourt o f tlf* Httiirb
OCTOBER TERM, 1931 

No. 265

L. A. NIXON,
Petitioner

against
JAMES CONDON AND C. H. KOLLE,

Respondents

BRIEF ON THE MERITS IN SUPPORT OF THE 
PETITIONER, L. A. NIXON

J. ALSTON ATKINS,
CARTER W. WESLEY,

Attorneys for Movants

J. M. NABRIT, Jr.,
NABRIT, ATKINS and WESLEY

Of Counsel



I N D E X
PAGE

MOTION FOR LEAVE TO FILE BRIEF 1
CERTIFICATE OF COUNSEL .........................................  3
BRIEF ON THE MERITS ..................................................  4

Decisions Below ............................................................  4
Jurisdiction ........................   4
Statement of the Case .................................................  5

ARGUMENT:
Summary ........................................................................ 8
Detailed Argument ......................................................  10

POINTS:

1. The statute is unconstitutional because, on its
face, it creates an arbitrary, unreasonable, and un­
fair classification, which denies to plaintiff the 
equal protection of the laws ...................................  10

2. The statute is unconstitutional because, as inter­
preted by the state courts and the lower Federal 
Courts, it recognizes an unconstitutional discrimi­
nation against plaintiff and all other qualified 
Negroes ........................................................................ 11

3. The purpose and intent of the Legislature in pass­
ing the statute was to accomplish by indirect ac­
tion that which the Supreme Court of the United 
States had held in Nixon v. Herndon, 273 U. S. 
536, it was without power to do by direct enact­
ment .............................;................................................ 12
Judicial Knowledge ................................................... 13
Intent Shown by Emergency Clause ...................... 14

\



ii

Intent Shown by Legislative Debate ...................... 15
Intent Shown by Historical Facts ...........................  17
History of Effort To Bar Negroes From Demo­
cratic Primaries ........................................................  17

PAGE

4. The statute is unconstitutional because in its ope­
ration, it is used as one of the instrumentalities by 
which, with the approval of the State of Texas, 
the plaintiff and all other qualified Negroes are 
deprived of their legal right to vote in the statu­
tory primary election involved in this case............  20

5. The resolution is no defense to this suit because
plaintiff had a legal right to vote in said election 
and defendants’ action in depriving him of that le­
gal right was a legal w rong.......................................  21

6. The State of Texas could not by statute grant
immunity to defendants from the consequences of 
that wrong (Nixon v. Herndon, supra), and, a for­
tiori, the State Democratic Executive Committee, 
whether it be a creature of the State or merely a 
body of private individuals, has no power to grant 
such immunity ............................................................  21

7. The jurisdictional power of Federal Courts to
grant relief in any case is not limited to the en­
forcement of Federal rights or to acts done either 
by State Officers or in the execution of state 
power ...........................................................................  23

8. The disfranchisement of plaintiff and other quali­
fied Negroes disclosed by the record violates the 
15th Amendment, because citizens of one race



iii

were guaranteed by law the right to vote in the 
statutory election involved in this case, while 
plaintiff and other qualified Negroes were not..... 24

9. This Court should decide all of the questions in­
volved in this case, especially those pertaining to 
the “inherent power” and “private individuals” 
arguments, in order to prevent a multiplicity of 
suits and to prevent undue hardship upon plaintiff

PAGE

and all other qualified Negroes in Texas ................25

CONCLUSION ...................................................................... 26

CASES CITED

Bailey v. Alabama, 219 U. S. 219 .......................................  20
Blethen v. Bonner, 52 S. W. 571 .........................................  14
Bliley v. West, 42 Fed (2nd) 101 .................................  4, 12
Chicago v. Kendall, 266 U. S. 9 4 .........................................  4
Civil Rights Cases, 109 U. S. 3 ........................................... 22
Clancy v. Clough, —Tex— , 30 S. W. (2nd) 569 ..............  21
Columbus R. Co. v. Columbus, 249 U. S. 399 .................. 4
Connole v. Norfolk, etc., 216 Fed 823 ...............................  13
Connolly v. Union Sewer Pipe Co., 184 U. S. 540..........10, 11
Ex Parte Davidson, 57 Fed 883 ........................................... 14
Faris v. Hope, 298 Fed 727 ................................................. 13
Green v. Ry., 244 U. S. 499 ...................................................  4
Grigsby v. Harris, 27 Fed (2nd) 942 ...............................  25
Kaye v. May, 296 Fed 450 ..................................................  13
Knower v. Haines, 31 Fed 513 ...........................................  13
L. and N. Ry. v. Garrett, 231 U. S. 298, ............................  24
Lamar v. Micou, 114 U. S. 218 ........................................... 13

\



IV

PAGE
Love v. The City Democratic Committee, No. 438 in 

Equity, U. S. Dist. Ct. at Houston ...............................  25

Love v. Wilcox et al, — Tex— , 28 S. W. (2nd) 515 10, 17,
21, 24

M. K. T. Ry. v. Mcllhaney, 129 S. W. 153 ........................ 14
Mills v. Green, 159 U. S. 651 ............................................... 13
Muller v. Oregon, 208 U. S. 4 1 2 ........................................... 14
Nixon v. Condon, et al, 49 Fed (2nd) 1012.... 4, 5, 8, 21, 22

Nixon v. Herndon, 273 U. S. 536 ......................5, 9, 12, 13, 14
15, 19, 21, 22, 23, 24, 25, 26

Quinn v. United States, 238 U. S. 347 ...............................  15
Quon Wing v. Kirkendall, 223 U. S. 59 ............................ 13

Rose Mfg. Co. v. Western Union Tel. Co., 251 
S. W. 337 ...........................................................................  14

Siles v. L. and N. Railway, 213 U. S. 175 .........................  24
Simpson v. United States, 252 U. S. 547 ............................ 14
State v. Meharg, 287 S. W. 670 .....................................14, 26
Southern Ry. Co. v. Greene, 216 U. S. 400 ........................ 11
Swafford v. Templeton, 185 U. S. 487 .............................  5
Truax v. Corrigan, 257 U. S. 312 .......................................  11
United States v. Reese, 92 U. S. 2 1 4 .............................. 5, 24
United States v. Sanders, 290 Fed 428 ............................ 14
United States v. Wallace, 279 Fed. 401 ............................ 14
Weaver v. Palmer Bros. Co., 270 U. S. 402 ........................ 13
West v. Bliley, 33 Fed (2nd) 177 .......................................  12

White v. Lubbock, et al., —Tex— , 30 S. W. (2nd) 722... 10,
12, 21, 24, 25

Wiley v. Sinkler, 179 U. S. 58 ............................................. 5



V

PAGE
Wiley v. Webber, et al, No. 432 in Equity, U. S. Dist. Ct.

at San Antonio .................................................................. 25
Williams v. Castleman, 247 S. W. 263 ...............................  14
Yick Wo v. Hopkins, 118 U. S. 356 ............................  11, 21

REFERENCES TO CONSTITUTION
Constitution of the United States:

Fourteenth Amendment ....................................8, 14, 15
Fifteenth Amendment .........................................8, 9, 24

UNITED STATES STATUTORY REFERENCES
Judicial Code:

Section 24 (1) ................................................................ 4
Section 24 (11) ..............................................................  5
Section 24 (12) ..............................................................  5
Section 24 (14) ............................................................  5

United States Code:
Title 8, Section 31 ........................................................  5
Title 8, Section 43 .........................................................  5

TEXAS STATUTORY REFERENCES
Revised Civil Statutes of 1925:

Article 2642 .................................................................... 27
Article 3002 ...................................................................... 6
Articles 3100 to 3153 (inclusive) ............................ 5
Article 3104 .................................................................... 6
Article 3105 .................................................................... 6
Article 3107 ........................ 6, 12, 13, 14, 15, 17, 19, 20
Title 49, Chapters 1 to 9 (inclusive) .......................... 26
Resolutions of Democratic State Executive

Committee .................................................................  7
Laws of 1927:

Chapter 67 ......................................................................  6
House Journal:

First Called Session of the 40th Legislature 15, 16



&uprrmr (fimirt of tlje Unitpfc &tatro
OCTOBER TERM, 1931

No. 265 
L. A. NIXON,

Petitioner,

against
JAMES CONDON AND C. H. KOLLE,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF ON THE 
MERITS, AND BRIEF ATTACHED THERETO,

IN SUPPORT OF THE PETITIONER,
L. A. NIXON

TO THE HONORABLE THE CHIEF JUSTICE AND 
ASSOCIATE JUSTICES OF THE SUPREME COURT 
OF THE UNITED STATES:

C. N. Love, Julius White, The Houston Informer and Tex­
as Freeman, and their attorneys herein, individually and on 
behalf of all other Negroes in the City of Houston, in Har­
ris County, and the State of Texas, who are not otherwise 
represented, hereby respectfully move this Honorable Court 
for leave to file, as amici curiae, the brief hereto attached, 
as a brief upon the merits in the above styled and number­
ed cause, in support of the petitioner, L. A. Nixon.

In support of this motion movants respectfully show that 
there are in their opinion important arguments and mat­
ters, pertinent to the issues involved in this case, which 
have not heretofore or otherwise been called to the atten-

should have before it in deciding this case upon the merits.
■— ^ /  ?'•.

As evidence thereof, without asking the Court to read the



2

entire brief for this purpose, movants call attention to Point 
No. 1 in said brief, which is hereby incorporated into this 
motion by reference.

WHEREFORE, premises considered, movants pray that 
this Honorable Court may grant them leave to file the brief 
attached hereto as a brief upon the merits, in support of the 
petitioner, L. A. Nixon.

Dated November 18, A.
C. N. LOVE 
JULIUS WHITE
THE HOUSTON^FORMER AND TEXAS 
FREEMAN 
By G. H. WEBS 
J. ALSTON ATKII 
One of Attorneys for Mbvants 
Office and Post Office Address 
409 Smith Street, Houston, Texas.

THE STATE OF TEXAS 
COUNTY OF HARRIS

Before me, the undersigned authority, on this day per­
sonally appeared C. N. Love, Julius White, G. H. Webster, 
and J. Alston Atkins, who, having been by me first duly 
sworn, on their oaths depose and say:

That they are the identical persons who executed the 
within and foregoing motion, and that the allegations there­
in set forth are true, according to their best knowledge and 
belief.

Subscribed and sworn to before me this JJie l£th day of 
November, A. D., 1931.

LELAND D. EWING'
I  Notary Public in and for Harris County, 

Texas.
(SEAL)
My commission expires June 1, 1933.



t

3

CERTIFICATE OF COUNSEL
I hereby certify that in my opinion the foregoing motion 

for leave to file brief is well founded in law, and is filed in 
good faith and not for delay.

J. ALSTON ATKIT 
One of Attorri^ys fbr/



&ujjr*mr (Enurt of tlje Initeii States
OCTOBER TERM, 1931

No. 265 
L. A. NIXON,

Petitioner,

against
JAMES CONDON AND C. H. KOLLE,

Respondents.

BRIEF ON THE MERITS IN SUPPORT OF THE 
PETITIONER, L. A. NIXON

DECISIONS BELOW
The decisions in the courts below, which are sought to be 

reversed here, are: Nixon v. Condon et al., 34 Fed. (2nd) 
464, and Nixon v. Condon et al., 49 Fed (2nd) 1012.

JURISDICTION
There are at least three grounds upon which jurisdiction 

may be sustained in this case:
1. That the matter in controversy exceeds in val­

ue the sum of $3,000 and involves a substantial 
Federal question. Sec. 24 (1) of the Judicial Code; 
Chicago v. Kendall, 266 U. S. 94; Green v. Ry. 244 
U. S. 499; Columbus R. Co. v. Columbus 249 U. S. 
399.

That there is at least a substantial Federal question in­
volved is indicated by the fact that the Circuit Court of Ap­
peals for the Fourth Circuit has held to be unconstitutional 
a state statute similar to the one alleged in this case to be 
unconstitutional. Bliley v. West, 42 Fed (2nd) 101.

2. That the controversy involves rights created 
by the Constitution and laws of the United States, 
and is, therefore, in its “ essence Federal,”  “ however

4



5

much wanting in merit may be the averments 
which it is claimed establish the violation of the 
Federal right.” Swafford v. Templeton, 185 U. S. 
487.

The right to vote for senator and representatives in Con­
gress is created by the Constitution and laws of the United 
States. Wiley v. Sinkler, 179 U. S. 58; Swafford v. Temple­
ton, supra.

The right to “ exemption from discrimination in the exer­
cise of the elective franchise on account of race, color, or 
previous condition of servitude” is also created by such 
Constitution and laws. United States v. Reese, 92 U. S. 
214.

These two Federal rights are the foundation of this con­
troversy.

3. That this is a suit to recover damages for the 
deprivation of one of the civil rights, namely, the 
right to vote. Judicial Code, Sec. 24 (11) (12) 
(14); Secs. 31, 43, Title 8, United States Code; Nix­
on v. Herndon, 273 U. S. 536.

Even the Circuit Court of Appeals in the instant case 
concedes that plaintiff had a legal right to vote in the pri­
mary election involved in this case.

“ It is of course to be conceded, since the decision 
in Nixon v. Herndon, supra, that the right of a qua­
lified citizen to vote extends to primary elections as 
well as to general elections.” Nixon v. Condon et 
al., 49 Fed. (2nd) 1012, 1013.

STATEMENT OF THE CASE
By the Election Laws of Texas, Title 50, Chapter 13, 

Articles 3100 to 3153, Revised Civil Statutes, the State re­
quired that there be held on July 28, 1928, an election for 
the purpose of nominating candidates for representatives in 
the United States Congress, for United States senator, and 
for state, county, district, and precinct officers in the State 
of Texas. With great particularity, these statutes set



6

forth the time, place, and method of holding such election, 
and the requirements for participation therein.

The defendants were election judges of said election, 
their offices being created by said Election Laws (Article 
3104); and as such judges, they were clothed by statute 
(Articles 3002 and 3105 of said Election Laws) with, among 
others, the following sovereign powers of the state of Tex­
as: To administer oaths; to act with the same power as a 
district judge to enforce order and keep the peace; to ap­
point special peace officers; to issue warrants of arrest for 
felony, misdemeanor or breach of peace; to authorize con­
finement of persons arrested to jail; to compel observance 
of law against loitering or electioneering within 100 feet 
of polling places; to arrest or cause to be arrested anyone 
carrying voters to polls contrary to law.

No private individual or organization has any such pow­
ers as these.

The plaintiff was a member of the Democratic Party and 
a duly qualified elector and voter under the laws of the 
State of Texas, except that he was a Negro, and he attempt­
ed to vote in said election.

The defendants denied plaintiff the right to vote in said 
election, defending their action under the following statute 
and resolution:

Chapter 67 of the Laws of 1927, passed by 1st called 
session of 40th Legislature of Texas, which is now Article 
3107 of the Revised Civil Statutes of Texas:

“ AUTHORIZING POLITICAL PARTIES THROUGH 
STATE EXECUTIVE COMMITTEES TO 

PRESCRIBE QUALIFICATIONS 
OF THEIR MEMBERS 

(H. B. No. 57)
Chapter 67

“ An act to repeal Article 3107 of Chapter 13 of 
the Revised Civil Statutes of Texas, and substitut­



7

ing in its place a new article providing that every 
political party in this State through its State Execu­
tive Committee shall have the power to prescribe the 
qualifications of its own members and shall in its 
own way determine who shall be qualified to vote 
or otherwise participate in such political party, and 
declaring an emergency.

“ Be it enacted by the Legislature of the State of 
Texas:

“ Section 1. That Article 3107 of Chanter 13 of 
the Revised Civil Statutes of Texas be and the same 
is hereby repealed and a new article is hereby en­
acted so as to hereafter read as follows:

‘Article 3107. Every political partv in this State 
through its State Executive Committee shall have 
the power to prescribe the qualifications of its own 
members and shall in its own way determine who 
shall be qualified to vote or otherwise participate 
in such political party: provided that no person shall 
ever be denied the right to participate in a nrimarv 
in this State because of former political views or 
affiliations or because of membership or non-mem­
bership in organizations other than the political par­
ty.’

“ Sec. 2. The fact that the Supreme Court of 1he 
United States has recently held Article 3107 invalid, 
creates an emergency and an imperative public 
necessity that the Constitutional Rule requiring bills 
to be read on three several days in each House be 
suspended and said rule is hereby suspended, and 
that this Act shall take effect and be in force from 
and after its passage, and it is so enacted.

“ Aproved June 7, 1927
“ Effective 90 days after adjournment.”

Resolution passed by the State Democratic Executive 
Committee of Texas pursuant to the power either conferred 
or recognized by the above quoted statute:

“ Resolved: That all white Democrats who are 
qualified under the Constitution and laws of 
Texas and who subscribe to the statutory pledge 
provided in Article 3110, Revised Civil Statutes of 
Texas, and none other, be allowed to participate in



8

the primary elections to be held July 28, 1928, and 
August 25, 1928, and further, that the Chairman 
and Secretary of the State Democratic Executive 
Committee be directed to forward to each Democrat­
ic County Chairman in Texas a copy of this resolu­
tion for observance.”

Thereupon, plaintiff brought this suit for damages in the 
sum of five thousand dollars ($5,000) for the legal wrong 
done to him by defendants in depriving him of his legal 
right to vote in said election; the plaintiff alleging that the 
above statute and resolution were no defense and that they 
violated his rights under the 14th and 15th Amendments to 
the Constitution of the United States.

The District Court sustained a motion to dismiss, 34 Fed 
(2nd) 464, and the Circuit Court of Appeals sustained the 
decision of the District Court, 49 Fed (2nd) 1012.
Questions:

1. Is the above statute constitutional?
2. Is the above resolution a valid defense to this action?
3. Does the disfranchisement of plaintiff and the other 

Negroes disclosed by the record violate the 15th Amend­
ment?

ARGUMENT
SUMMARY:

1. The statute is unconstitutional because,
(a) On its face it creates an arbitrary, unreasonable, and 

unfair classification, which denies to plaintiff and all 
other qualified Negroes the equal protection of the 
laws.

(b) As interpreted by the state courts and the lower 
Federal Courts in Texas, it recognizes and enforces 
an unconstitutional discrimination against plaintiff 
and all other qualifed Negroes.

(c) The purpose and intent of the Legislature in passing



9

the statute was to accomplish by indirect action that 
which the Supreme Court of the United States had 
held in Nixon v. Herndon, 273 U. S. 536, it was with­
out power to do by direct enactment.

(d) In operation the statute is used as one of the instru­
mentalities, with the approval of the State of Texas, 
by which the plaintiff and all other qualified Negroes 
are deprived of their legal right to vote in the statu­
tory primary election involved in this case.

2. The resolution is no defense to this action.
(a) Plaintiff had a legal right to vote in said election, 

and defendants’ action in depriving him of that right 
was a legal wrong.

(b) The State of Texas could not by statute grant im­
munity to defendants from the consequences of that 
wrong and, a fortiori, the State Democratic Execu­
tive Committee, whether it be a creature of the 
State, or merely a body of private individuals, could 
not grant such immunity.

(c) The jurisdictional power of Federal Courts to grant 
relief in any case is not limited to the enforcement of 
Federal rights or to acts done either by State offi­
cers, or in the execution of State power.

3. The disfranchisement of plaintiff and other qualified 
Negroes disclosed by the record, violates the 15th 
Amendment because citizens of one race were guaran­
teed by law the right to vote in the statutory election 
involved in this case, while plaintiff and other qualified 
Negroes were not.

4. This Court should decide all of the questions involved 
in this case, especially those pertaining to the “ inherent 
power”  and “ private individuals” arguments, in order 
to prevent a multiplicity of suits and to prevent undue



10

hardship upon plaintiff and all other qualified Negroes 
in Texas.

DETAILED ARGUMENT:

POINT I
The statute is unconstitutional because, on its face, it 

creates an arbitrary, unreasonable, and unfair classification, 
which denies to plaintiff the equal protection of the laws.

It provides:
“ Every political party in this State through its 

State Executive Committee shall have the power to 
prescribe the qualifications of its own members and 
shall in its own way determine who shall be quali­
fied to vote or otherwise participate in such political 
party; provided that no person shall ever be denied 
the right to participate in a primary in this State 
because of former political views or affiliations or 
because of membership or non-membership in or­
ganizations other than the political party.”

The excepting provision “ that no person shall ever be de­
nied the right to participate in a primary in this State be­
cause of former political views or affiliations or because of 
membership or non-membership in organizations other than 
the political party” has been sustained by the Supreme 
Court of Texas as forbidding the exclusion of a person who 
neither had supported the Democratic Candidates in toto in 
the past nor would promise absolutely to do so in the future. 
Love v. Wilcox et al., — Tex.— , 28 S. W. (2nd) 515.

Likewise the power to exclude Negroes under the general 
power either conferred or recognized by the statute has 
been sustained by the Court of Civil Appeals of Texas, at 
Galveston, in a case in which it was the court of last resort.

White v. Lubbock et al.
— Tex— , 30 S. W. (2nd) 722

In Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 
an anti-trust statute was held invalid under the equal



11

protection clause because it contained the excepting provi­
sion that it should “ not apply to agricultural products or 
live stock while in the hands of the producer or raiser.”

In the Connolly Case this court said at page 558:
“ But upon this general question we have said that 

that the guarantee of the equal protection of the 
laws means ‘that no person or class of persons shall 
be denied the same protection of the laws which is 
enjoyed by other persons or other classes in the 
same place and in like circumstances.’ Missouri v. 
Lewis, 101 U. S. 22, 31.”

The denial of equal protection is clear.
“ Immunity granted to a class, however limited, 

having the effect to deprive another class, however 
limited, of a personal or property right, is just as 
clearly a denial of equal protection of the laws to the 
latter class as if the immunity were in favor of, or 
the deprivation of right permitted worked against a 
larger class.” Truax v. Corrigan, 257 U. S. 312, 
333.

“ The equal protection of the laws is a pledge of 
the protection of equal laws.” Yick Wo v. Hopkins, 
118 U. S. 356, 369.

“ While reasonable classification is permitted, 
without doing violence to the equal protection of the 
laws, such classification must be based upon some 
real and substantial distinction, bearing a reason­
able and just relation to the things in respect to 
which such classification is imposed; and classifica­
tion cannot be arbitrarily made without any sub­
stantial basis.”

Southern Ry. Co. v. Greene
216 U. S. 400, 417.

What could be more unfair, arbitrary, unreasonable, and 
unjust than the exemption in this case which forbids the 
exclusion of disloyal white Democrats, while permitting the 
exclusion of Negro Democrats on the ground of race and 
color alone?

POINT II
The statute is unconstitutional because, as interpreted



12

by the state courts and the lower Federal courts, it recog­
nizes an unconstitutional discrimination against plaintiff 
and all other qualified Negroes.

That the state law sought to be declared unconstitutional 
in this case does recognize and protect the power of the 
State Democratic Executive Committee to deprive Negroes 
of their legal rights upon the ground of color alone is clear. 
In the case of White v. Lubbock, —Tex.— , 30 S. W. (2nd) 
722, it is held that the resolution involved in this case was 
a “ valid exercise through its proper officers of such party’s 
inherent power, (recognized, but not created by R. S. Arti­
cle 3107) * * * ” In that case the Court of Civil Appeals 
was the court of last resort in Texas.

In the instant case, the Circuit Court of Appeals held 
“ The act of 1927 was not needed to confer such power, it 
merely recognized a power that already existed.”

As to the power of the State of Texas, thus to recognize 
and protect the State Democratic Executive Committee in 
depriving Negroes of their legal right to vote in the Texas 
statutory primary the holding of Judge Groner in West v. 
Bliley, 33 Fed (2nd) 177, 180, which was adopted by the 
Circuit Court of Appeals for the Fourth Circuit in Bliley v. 
West, 42 Fed (2nd) 101, is pertinent:

“That a law which recognizes or which authorizes 
a discrimatory test or standard does curtail and sub­
vert them (“ the provisions of the Constitution and 
the rights of voters” ) there can be no doubt, and 
such a law is therefore in conflict with the Four­
teenth and Fifteenth Amendments to the Constitu­
tion of the United States.”

POINT III
The purpose and intent of the Legislature in passing the 

statute was to accomplish by indirect action that which the 
Supreme Court of the United States had held in Nixon v.



13

Herndon, 273 U. S. 536, it was without power to do by di­
rect enactment.

The statute was passed as an emergency measure, and 
the reason therefor is stated in Section 2 of the Act as fol­
lows:

“The fact that the Supreme Court of the United 
States has recently held Article 3107 invalid, creates 
an emergency and an imperative public necessity 
that the Constitutional Rule requiring bills to be 
read on three several days in each House be suspend­
ed and said rule is hereby suspended, and that this 
Act shall take effect and be in force from and after 
its passage, and it is so enacted.”

Judicial Knowledge

In the first place we mention the fact that the Supreme 
Court of the United States has held that a statute’s or 
law’s “ invalidity may be shown by things which will be ju­
dicially noticed.” Weaver v. Palmer Bros. Co., 270 U. S. 
402, 410, but it has also been held that, unless these mat­
ters and things to be judicially noticed are called by counsel 
to the attention of the court, it will not notice them. “ There 
are many things that courts would notice if brought before 
them that beforehand they do not know.” Mr. Justice 
Holmes in Quong Wing v. Kirkendall, 223 U. S. 59, 64.

The Federal Courts will take judicial notice of the laws 
of every state. Mills v. Green, 159 U. S. 651; Lamar v. Mi- 
cou, 114 U. S. 218.

The Federal Courts take judicial notice of those laws 
created by statute or judicial decisions. Faris v. Hope, 298 
Fed 727; Kaye v. May, 296 Fed 450; Knower v. Haines, 31 
Fed 513.

Federal Courts will take judicial notice of legislative 
journals. Connole v. Norfolk, etc., 216 Fed 823.

Federal Courts take judicial notice of historical facts.



14

Simpson v. United States, 252 U. S. 547; United States v. 
Wallace, 279 Fed 401; Ex Parte Davidson, 57 Fed 883. 
Texas cases to the same effect are: Blethen v. Bonner, 52 
S. W. 571; Williams v. Castelman, 247 S. W. 263.

Federal Courts take judicial notice of matters of common 
knowledge. Muller v. Oregon, 208 U. S. 412; United States 
v. Sanders, 290 Fed 428. Texas cases to same effect are: 
State v. Meharg, 287 S. W. 670; M. K. T. Ry. v. Mellhaney, 
129 S. W. 153; Rose Mfg. Co. v. Western Union Tel. Co., 251 
S. W. 337.

Intent Shown By Emergency Clause

Prior to the decision in Nixon v. Herndon, supra, old 
Article 3107 of the Revised Civil Statutes of Texas read as 
follows, and contained no other provision:

“ In no event shall a Negro be eligible to participate in a 
Democratic party primary election held in the State of Tex­
as, and should a Negro vote in a Democratic primary elec­
tion, such ballot shall be void and election officials shall not 
count the same.”

This old Article 3107 dealt with only one subject, namely, 
the exclusion of Negroes from voting in the Texas Demo­
cratic primaries.

The said case of Nixon v. Herndon dealt with only one 
subject, namely, the legal right of Negroes to vote in the 
Texas Democratic primaries and the validity under the 14th 
Amendment to the Constitution of the United States of said 
old Article 3107, which sought to deprive Negroes of that 
right.

Upon the decision by the Supreme Court in said case of 
Nixon v. Herndon that Negroes had a legal right to vote in 
the Texas Democratic primaries and that old Article 3107, 
which sought to deprive them of that right, was a violation



15

of the equal protection clause of the 14th Amendment to 
the Constitution of the United States, the 1st Called Ses­
sion of the 40th Legislature of Texas passed new Article 
3107, which is in controversy in this suit, stating in the 
face of the new Artcle 3107 that the reason for its prompt 
passage was that the Supreme Court of the United States 
had created, by the said case of Nixon v. Herndon, “an 
emergency and an imperative public necessity” ; which, we 
believe, shows on its face that the intent of the Legislature 
was nothing more than to circumvent, if possible, the deci­
sion of the Supreme Court of the United States in the said 
case of Nixon v. Herndon, and, if our belief is well founded, 
said new Article 3107, under Quinn v. United States, 238 U. 
S. 347, is just as unconstitutional as if the intent to exclude 
Negroes had been in words stated on the face of the Article 
itself.

Intent Shown By Legislative Debate

The debate in the Texas House of Representatives upon 
the passage of said new Article 3107, which was House Bill 
No. 57, we believe, shows that the purpose of passing said 
Article was to circumvent, if possible, the decision of the 
Supreme Court of the United States in said case of Nixon 
v. Herndon.

The House Journal of the 1st called Session of the 40th 
Legislature of Texas shows the following:

At page 302, Representative Faulk said: “ I voted against 
House Bill No. 57 because it confers too much authority on 
thirty-one members. I sought to amend the bill by provid­
ing that these thirty-one men shall never prescribe proper­
ty holding as a qualification of voting. As passed, the act 
empowers the State Executive Committee to prescribe with­
out limit the qualifications of a voter, and they have ample 
power under the act to say that a man must be a Methodist,



16

a Mason, and a millionaire. This savors of autocracy and 
I will not sanction it by my vote. I will support any rea­
sonable bill to curb the negro vote.”

On the same page, Representative Stout said: “ I voted 
‘nay’ on House Bill No. 57 for the following reasons:

“ In the first place, it is doubtful if the bill will accomplish 
its purpose, in view of the recent holding of the Supreme 
Court of the Unted States.

“ On the other hand, admitting for the sake of argument 
that it would do so, then I am not willing to turn my gov­
ernment over to a small number of men who compose the 
State Executive Committee.

“ The South has always handled the ‘nigger’ in a satis­
factory manner, and I believe that it will continue to do so.

“ In my humble judgment, it is far more dangerous to 
entrust our whole political destiny to a few men than the 
scare of the negro question would ever be. It is a matter 
of common knowledge that we, the people of Texas, have 
always voted our prejudices too often in the past. I fear 
that the pendulum might swing too far one way or the oth­
er, and that the day might come back when a few clicks 
and klans might run out the unterrified Democrats, or that 
the unterrified Democrats might get in the saddle and oust 
the kluckers, as they came close to doing in the past.

“ I believe the whole affair makes a mountain out of 
nothingness, and that it is un-American and un-Democratic. 
I had rather take my chances on handling the ‘nigger’ than 
I would on thirty-one men who would have final authority 
to determine who should vote and who should not vote, and 
who should be a Democrat or not be a Democrat.

“ The Constitution of Texas prescribes the qualifications 
of a voter—about that there can be no doubt. The Su­
preme Court has held a ‘nigger’ can vote under the present 
primary law. About that there can be no doubt. If the



17

primary election is an ‘election’ in the proper and legal 
sense, then a ‘nigger’ can vote, and no law can stop him.

“ If a primary is not an election, as our Texas courts have 
said in the past, the State Executive Committee would have 
the same blanket authority to judge the qualifications of its 
own members, as does the Baptist Church. It could ostracise 
a man at will and set up a standard to suit itself. In that 
respect and to that extent we would be going back to the 
days of crowns and jeweled baubles of Bolsheviki Russia.

“ It was Abraham Lincoln who said, ‘The heart of the 
American people has never failed in a great crisis, and it 
never will.’ To that philosophy I conform, when the whole 
people have a chance to record their sentiments. But I am 
not willing to trust my government and politics to what 
could very easily become an oligarchy.”

Intent Shown By Historical Facts

Senator Thomas B. Love, who was a member of the Texas 
Senate when said Article 3107 was passed, filed a brief, 
signed by himself, in the Supreme Court of Texas, in the 
case of Love v. Wilcox, 28 S. W. (2nd) 515, upon which the 
Supreme Court granted him relief in that case, in which he 
set out, in the following historical statement, the fact, that 
said new Article 3107 had “ no other purpose whatsoever” 
than “ to provide, if possible, other means by which negroes 
could be barred from participation, both as candidates and 
as voters, in the primary elections of the Democratic party, 
which would stand the test of the courts” :

“HISTORY OF EFFORT TO BAR NEGROES FROM 
DEMOCRATIC PRIMARIES”

“ Prior to 1903, there was no law in Texas regulating 
primary elections or party nominations, and such elections 
and nominations, and the control and regulations of all af­



18

fairs of political parties was vested entirely in party con­
ventions and executive committees. In that year, 1903, the 
Texas Legislature, for the first time, provided for regulat­
ing party primary elections and conventions, and party af­
fairs, by law, through the passage of the first Terrell Elec­
tion Law, which completely divested party conventions and 
committees of the control theretofore exercised by them.

“ From the beginning of election legislation, the questions 
of barring or admitting negroes in Democratic primary elec­
tions was an important one, some counties, through their 
representatives, desiring that negroes be allowed to vote in 
Democratic primaries, while others strenuously insisted 
that they should be barred by statewide law. The first 
Terrell election law relegated this subject to the party 
executive committees of the various counties by the follow­
ing provision:

‘The County Executive Committee of the party 
holding any primary election may prescribe addi­
tional qualifications necessary to participate there­
in;’ (see Section 94, p. 150, Acts of the First Called 
Session, 28th Legislature, 1903.)

“ When the Terrell Election Law was generally revised by 
the Twenty-ninth Legislature in 1905, this same provision 
was re-enacted in the following language:

‘The Executive Committee of any party for any 
county may prescribe additional qualifications for 
voters in such primary not inconsistent with this 
Act.’

“ This same provision, in the same words, was re-enacted 
in the codification of the Revised Statutes of 1911, (see 
Art. 3093, R. C. S. 1911) and remained in force until 1923.

“ Thus, from 1903 until 1923, just twenty years, the elec­
tion laws of Texas provided that all qualified voters should 
be qualified to vote in any party primary, upon taking the 
Drescribed party test, and provided no other statewide quali­



19

fications whatever for primary election voters, but, in ef­
fect, enabled a political party in any county to bar negroes 
if it saw fit to do so by prescribing ‘additional qualfica- 
tons.’

“Original Enactment of Article 3107”

“ The Second Called Session of the Texas Legislature, in 
1923, enacted a Statute amending Art. 3093, R. C. S. 1911, 
designed specifically to bar Negroes from participating in 
primary elections of the Democratic party in every county 
in Texas, which afterward w'as codified as Art. 3107, R. C. 
S. of 1925, and which read as follows:

‘Art. 3107: In no event shall a negro be eligible 
to participate in a Democratic primary election held 
in the State of Texas, and should a negro vote in a 
Democratic primary election, such ballot shall be 
void and election officers shall not count the same.’

“Article 3107 Held Unconstitutional”
“ It was the obvious purpose of this enactment to bar ne­

groes not only from voting, but from participating in any 
way, either as voters or as candidates, in Democratic pri­
maries.

“ This Statute passed in 1923 was declared to be uncon­
stitutional and void by the Supreme Court of the United 
States, in 1927, in the case of Nixon v. Herndon, et al, Vol­
ume 47, Supreme Court Reporter, page 446.

“Article 3107 Amended in 1927 so as to Give the State
Executive Committee Whatever Power 

It Now Possesses”

“The Fortieth Legislature in its First Called Session held 
in 1927, having in mind that, this Statute of 1923 had been 
invalidated by the Courts, and desiring to provide, if pos­
sible, other means by which negroes could be barred from 
participation, both as candidates and as voters, in the pri­
mary elections of the Democratic party, which would stand

V



20

the test of the Courts, and having no other purpose what­
soever, passed a statute amending said Article 3107 so as 
to read as follows:

‘Art. 3107: Every political party in this State, 
through its State Executive Committee shall have 
the power to prescribe the qualifications of its own 
members, and shall in its own way, determine who 
shall be qualified to vote or otherwise participate in 
such political party; provided, that no person shall 
ever be denied the right to participate in a primary 
in this State because of former political views or af- 
fliations, or because of membership or non-member­
ship in organizations other than the political par­
ty’.”

We close this point with the following quotation from a 
decision by this Court:

“What the State may not do directly, it may not 
do indirectly.”  Bailey v. Alabama 219 U. S. 219.

POINT IV

The statute is unconstitutional because in its operation, it 
is used as one of the instrumentalities by which, with the 
approval of the State of Texas, the plaintiff and all other 
qualified Negroes are deprived of their legal right to vote 
in the statutory primary election involved in this case.

“ Without imputing any actual motive to oppress, 
we must consider the natural operation of the 
statute here in question (Henderson v. Mayor, 92 
U. S. 268), and it is apparent that it furnishes a con­
venient instrument for the coercion which the Con­
stitution and the act of Congress forbid.” Bailey 
v. Alabama, supra.

It is a matter of common and historical knowledge in 
Texas that, under this statute and its predecessors, nobody 
has been excluded from participation in the statutory pri­
mary elections except Negroes.

It is also a fact that this practice has been sustained by 
the Appellate Courts of Texas.



21

Love v. Wilcox et al, supra
White v. Lubbock et al, supra

In Clancy v. Clough, — Tex.—  30 S. W. (2nd) 569, the 
Court of Civil Appeals at Galveston held that the party 
committee was without power to place upon the statutory 
primary ballot “ any pledge other than that prescribed by 
the statute or one containing the additional word ‘white’ be­
fore the word ‘Democrat’ in the pledge prescribed by the 
statute.”

This Court has held that:
“Though the law itself be fair on its face and im­

partial in appearance, yet, if it is applied and ad­
ministered by public authority with an evil eye and 
an unequal hand, so as practically to make unjust 
and illegal discriminations between persons in simi­
lar circumstances, material to their rights, the de­
nial of equal justice is still within the prohibition of 
the Constituton.” Yick Wo v. Hopkins, 118 U. S. 
356.

POINT V
The resolution is no defense to this suit because plaintiff 

had a legal right to vote in said election, and defendants’ 
action in depriving him of that legal right was a legal 
wrong.

This was determined by this Court in Nixon v. Herndon, 
273 U. S. 536, and is conceded by the Circuit Court of Ap­
peals in the instant case. On this point, the Court said:

“ It is of course to be conceded, since the decision 
in Nixon v. Herndon, supra, that the right of a qua­
lified citizen to vote extends to primary elections as 
well as to general elections.”  Nixon v. Condon, et 
al. 49 Fed (2nd) 1012, 1013.

POINT VI
The State of Texas could not by statute grant immunity 

to defendants from the consequences of that wrong (Nixon 
v. Herndon, supra), and, a fortiori, the State Democratic



22

Executive Committee, whether it be a creature of the State 
or merely a body of private individuals, has no power to 
grant such immunity.

If a creature of the State, Nixon v. Herndon, supra, defi­
nitely denies power to grant such immunity.

The Circuit Court of Appeals in this case based its deci­
sion upon these grounds:

“ The distinction between appellants’ cases, the 
one under the 1923 statute and the other under the 
1927 statute, is that he was denied the permission 
to vote in the former by state statute, and in the lat­
ter by resolution of the State Democratic Executive 
Committee.”

“A political party is a voluntary association, and 
as such has the inherent power to prescribe the qua­
lifications of its members. The act of 1927 was not 
needed to confer such power; it merely recognized a 
power that already existed.”

(a) The “private individuals” argument.
The following quotation from the opinion of this 

court in the Civil Rights Cases, 109 U. S. 3, is a con­
clusive answer to this argument:

“ In this connection it is proper to state that civil 
rights, such as are guaranteed by the Constitution 
against State aggression, cannot be impaired by the 
wrongful acts of individuals, unsupported by State 
authority in the shape of laws, customs, or judicial 
or executive proceedings. The wrongful act of an in­
dividual, unsupported by any such authority, is sim­
ply a private wrong, or a crime of that individual; an 
invasion of the rights of the injured party, it is true, 
whether they affect his person, his property, or his 
reputation; but if not sanctioned in some way by the 
State, or not done under State authority, his rights 
remain in full force, and may presumably be vindi­



23

cated by resort to the laws of the State for redress. 
An individual cannot deprive a man of his right to 
vote, to hold property, to buy and sell, to sue in the 
Courts, or to be a witness or a juror; he may, by force 
or fraud, interfere with the enjoyment of the right 
in a particular case; he may commit an assault 
against the person, or commit murder, or use ruffian 
violence at the polls or slander the good name of a 
fellow citizen; but, unless protected in these wrong­
ful acts by some shield of State law or State authori­
ty, he cannot destroy or injure the right; he will only 
render himself amenable to satisfaction or punish­
ment; and amenable therefor to the laws of the State 
where the wrongful acts are committed.”

(b) The “ inherent power” argument.
An analysis of Nixon v. Herndon, supra, is a com­

plete answer to this argument.
After this court had stricken down the state statute held 

unconstitutional in Nixon v. Herndon, supra, the defendants 
were left with the same power that they have in this case. 
The statute disposed of, if the defendants had “ inherent 
power” beyond statutory control to exclude plaintiff, this 
Court would not have granted relief. The fact that this 
Court did not recognize any such power shows that none 
existed. Defendants in this case being identical in capacity 
with defendants in Nixon v. Herndon, they have no greater 
powers than were there recognized.

POINT VII
The jurisdictional power of Federal Courts to grant relief 

in any case is not limited to the enforcement of Federal 
rights or to acts done either by State officers or in the exe­
cution of state power.

This proposition has become almost axiomatic; and it is



24

settled that, once the jurisdiction of the Federal Court at­
taches, it has jurisdictional power to grant whatever re­
lief, whether State or Federal, may be disclosed by the rec­
ord.

Siles v. L. and N. Railway 
213 U. S. 175, 191 
L. and N. Ry. v. Garrett 
231 U. S .298,304

The assumption by the lower courts in this case that they 
could not grant relief against the deprivation of the right, 
which the Circuit Court of Appeals said existed, simply be­
cause the deprivation was not by the State, is, therefore, 
clearly unfounded. Indeed, inquiry into the capacity of the 
defendants is immaterial, there being other grounds of 
jurisdiction than that they are state officers. That the de­
fendants in this case are also identical in capacity with the 
defendants in Nixon v. Herndon, supra, would also seem to 
settle this matter.

POINT VIII

The disfranchisement of plaintiff and other qualified Ne­
groes disclosed by the record violates the 15th Amendment, 
because citizens of one race were guaranteed by law the 
right to vote in the statutory election involved in this case, 
while plaintiff and other qualified Negroes were not.

That these are the facts is clear from the decisions of the 
Texas appellate courts in Love v. Wilcox and White v. Lub­
bock, supra, and from the facts within the judicial knowl­
edge of this Court.

Construing the 15th Amendment, this Court has held:
“ If citizens of one race having certain qualifica­

tions are permitted by law to vote, those of another 
having the same qualifications must be.”

United States v. Reese 
92 U. S. 214



25

POINT IX

This Court should decide all of the questions involved in 
this case, especially those pertaining to the “inherent pow­
er” and “private individuals” arguments, in order to pre­
vent a multiplicity of suits and to prevent undue hardship 
upon plaintiff and all other qualified Negroes in Texas.

It took plaintiff about three years to get a decision from 
this Court in Nixon v. Herndon, supra, and it has taken him 
about an equal period to get this case before this court. 
The expense involved in getting cases before this Court is 
no easy thing for Negroes to raise, who, as a matter of com­
mon knowledge, are generally poor. The delay causes ir­
reparable damage, in that more than one election goes by 
before a decision can be had.

The reluctance of the Texas State Courts and of the low­
er Federal Courts to go beyond the compelling literal lan­
guage of this court in granting relief to Negroes from the 
deprivation of their franchise rights seems clear from a 
careful study of the cases deciding the question, all of 
which have uniformly denied relief. In addition to the cas­
es already referred to, the following may be cited:

Grigsby v. Harris 
27 Fed (2nd) 942 
Wiley v. Weber, et al
No. 432 in Equity, U. S. Dist. Ct. at San Antonio. 
Love v. The City Democratic Committee 
No. 438 in Equity, U. S. Dist.
Ct. at Houston.
“ I am not disturbed as to what the Supreme 

Court of the United States in the omnipotence of its 
judicial power may hold on the question in some fu­
ture opinion, but I am not disposed to lead the way 
to a change in its present views upon this question 
by anticipating that they will be changed or modifi­
ed in some future opinion.”

Chief Justice Pleasants, Concurring in 
White v. Lubbock, supra



26

It is clear, we submit, that, if this court merely strikes 
down the statute in this case, as it did in Nixon v. Herndon, 
supra, and does not say in specific words that relief is 
granted because neither defendants nor the State Demo­
cratic Executive Committee, whether viewed as state offi­
cers or private individuals, have “ inherent power” to 
destroy the legal rights of plaintiff to vote in the statutory 
election here involved, then plaintiff and all other qualified 
Negro voters will be faced with these “ private individuals” 
and “ inherent power” arguments anew, and will be forced 
at great expense and delay, and with a multiplicity of suits, 
to try these questions out all over again.

We trust that this Court may see fit to so decide these 
questions as to prevent this undue hardship.

Conclusion

In State v. Meharg, 287 S. W. 670, a Texas Court of Civil 
Appeals said:

“ Indeed, it is a matter of common knowledge in 
this State that a Democratic primary election held 
in accordance with our statutes is virtually decisive 
of the question as to who shall be elected at the gen­
eral election. In other words, barring certain ex­
ceptions, a primary election is equivalent to a gen­
eral election.”

Those to whom are entrusted legislative powers in the 
State of Texas, therefore, feel that they owe no allegiance 
or duty to the Negroes of the State, in that they have been 
effectively excluded from participation in the primary elec­
tions “held in accordance wth our statutes.”

As typical of what the fruits are, we mention what atti­
tude these legislators have taken toward providing educa­
tional opportunities for the Negro citizens of Texas. See 
Title 49, Chapters 1 to 9, inclusive, of the Texas Revised 
Civil Statutes.



27

Exclusively for the white youths of the State, the follow­
ing educational institutions are provided:

1. A State University, which must and does have “ the 
departments of a first-class university.”

2. An Agricultural and Mechanical College “ for in­
struction in agriculture, the mechanical arts, and the 
natural sciences connected therewith.”

3. John Tarleton Agricultural College, which “ shall 
rank as a Junior Agricultural College.”

4. North Texas Junior Agricultural College.
5. College of Industrial Arts.
6. Texas Technological College.
7. School of Mines and Metallurgy.
8. Sam Houston State Teachers’ College.
9. North Texas State Teachers’ College.

10. Southwest Texas State Teachers’ College.
11. Texas College of Arts and Industries.
For Negro youth, there is provided the Prairie View State 

Normal and Industrial College, and nothing more. In the 
words of the statute (Art. 2642), it is limited to a “ four- 
year college course of classical and scientific studies.” This 
is the typical attitude of legislators whose election may not 
be affected by the votes of the Negroes of the State, who 
constitute about one-sixth of the total population.

WHEREFORE, premises considered, we pray that this 
Honorable Court may here reverse the decisions of the Cir­
cuit Court of Appeals and the District Court.

Respectfully submitted,
J. ALSTON ATKINS 
CARTER W. WESLEY 
Attorneys for Movants.

J. M. NABRIT, Jr.
NABRIT, ATKINS AND WESLEY 

Of Counsel