Mitchell v. Wright Supplemental Brief for Appellant

    1ST THE

Initefc &Ut?a (Etrruit Olrmrt si Appeals
F oe the F ifth Circuit

No. 11,538

WILLIAM P. MITCHELL,
Appellant,

versus

MRS. GEORGE C. WRIGHT, et al.,
Appellees.

A P PE A L  PR O M  T H E  DISTRICT COURT OE T H E  U H IT E D  STATES 
EOR T H E  M IDDLE D ISTR IC T OE A L A B A M A

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SUPPLEMENTAL BRIEF FOR APPELLANT

A rthur D. Shores,
1630 Fourth Avenue, No., 
Birmingham 3, Ala.

W illiam H. H astie,
615 F. Street, N. W., 
Washington, D. C.

T hurgood Marshall,
20 West 40th Street,
New York, N. Y.

Attorneys for Appellant.
R obert L. Carter,

New York, N. Y.
Of Counsel.



TABLE OF CONTENTS

P re lim in a rv  Statem ent

PAGE

__________  1

A rgu m en t ___________________ _____________  2

I. Article I, Sections 2 and 4 and Seventeenth 
Amendment to the United States Constitution 
Have Been Violated____________ ._____________  2

II. Appellees’ Acts Constitute State Action Under 
the Constitution and Laws of the United States... 4

Conclusion ________________________________________  10

Table of Cases.

Barney v. New York, 113 U. S. 430, 48 L. Ed. 737 
(1904) _______________________________________ 5,6,9

Home Telephone & Telegraph Co. v. Los Angeles, 227 
II. S. 278, 33 S. Ct. 312, 57 L. Ed. 510 (1913)_______ 6

Iowa-Des Moines Nat’l Bank v. Bennett, 284 U. S. 239,
52 S. Ct. 133, 76 L. Ed. 265 (1931)________________  6

Raymond v. Chicago Union Traction Co., 207 U. S. 20,
28 S. Ct. 7, 52 L. Ed. 78 (1907)___________________  5

Screws v. United States, ___ U. S. __ , 88 L. Ed.
1039 __________________________________ _________ 7, 9

Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88 L.
Ed. 987 (1943) ____________________ -____________  4, 7

Snowden v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed.
497 (1944) __________________ ____________________ 7,9



11

PAGE

United States v. Classic, 313 U. S. 299, 61 S. Ct. 1031,
85 L. Ed. 1368 (1941).._____________________ 3, 4, 6, 7, 8

Wiley v. Sinkler, 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed. 85 
(1898) _________________________________________  2

Other Citations.

Constitution of Alabama, Art. VIII, Section 184 
Alabama Code of 1940, Title 17, Section 21_____ to

 t
o



IN THE

Untteft States (Eirrmt (Emtrt of Appeals
F ob the F ifth Circuit.

No. 11,538

W illiam P. M itchell,
Appellant,

vs.

Mbs. Geoege C. W eight, et al.,
Appellees.

A P PE A L  PBO M  T H E  D ISTR IC T COURT OE T H E  U N IT E D  STATES 
FOB T H E  M IDDLE DISTRICT OF A LAB A M A

SUPPLEMENTAL BRIEF FOR APPELLANT

PRELIMINARY STATEMENT

Appellant files this supplemental brief before the call 
of the case for argument in order to clarify certain points 
which have been raised in the appellees’ brief. No attempt 
will be made to answer all of the arguments raised since 
most of these contentions have been adequately covered in 
appellant’s original brief.



2

ARGUMENT

I
Article I, Sections 2 and 4 and 17th Amendment to 

the United States Constitution Have Been Violated.

Registration is a prerequisite to voting in any state or 
federal election held in the State of Alabama. Constitution 
of Alabama, Article VIII, Section 184; Alabama Code of 
1940, Title 17, Section 21. In order to qualify to vote for 
members of Congress or of the Senate of the United States, 
one must have the necessary qualifications for an elector of 
the most numerous branch of the state legislature. Appel­
lees contend that in order for appellant to assert that his 
right to vote for a member of Congress has been violated, 
he must not only have the requisite qualifications of an 
elector but must be registered as required by state law. In 
substance, appellees argue that appellant must not only 
meet all the requisite qualifications for an elector in the 
most numerous branch of the legislature of Alabama but 
must be actually registered as such before he can complain 
of being denied rights secured by Article I, sections 2 and 4 
and the 17th Amendments to the United States Constitu­
tion. On its surface this contention is persuasive and ap­
pellees properly cite Wiley v. Sinkler, 179 U. S. 58, 66, 21 
S. Ct. 17, 45 L. Ed. 85, 89 (1898) where the United States 
Supreme Court said:

“ The Constitution and the laws of the state thus 
require that, in order to entitle anyone to have his 
vote received at any election, he must not only have 
the requisite qualifications of an elector, but he must 
have been registered. By elementary rules of plead­
ing both these essential requirements must be dis­
tinctly alleged by the plaintiff in any action against



3

the managers of an election for refusing his 
vote . .

There the plaintiff was attempting to cast his ballot in a 
general election for choice of United States Congressmen, 
There was not before the Court any attempt on the part of 
the state officers to prevent plaintiff from registering and 
thereby prohibit him from meeting the qualifications of an 
elector as required by the Constitution and laws of the 
United States and of the state in question. Had this situa­
tion been before the Court, it seems abundantly clear that 
a different conclusion would have been reached. The com­
plaint had merely alleged that the plaintiff was a duly quali­
fied elector, but it contained no allegation that he had ever 
registered or had even made application to register. Be­
cause of this omission it was held that the complaint did not 
state facts sufficient to constitute a cause of action.

Whatever doubts this decision may have raised were 
conclusively settled in United States v. Classic, 313 U. S. 
299, 61 St. 1031, 85 L. Ed. 1368 (1941). There a primary 
election was involved, and an argument similar to that pre­
sented by appellees here was raised. The Court held that 
the primary in Louisiana was an integral part of the pro­
cedure for the choice of Congressmen and that the right 
of qualified voters to vote in a Congressional primary elec­
tion and to have their ballots counted was in actuality the 
right to participate in that choice. And said the Court at 
page 318:

“ Where the state law has made the primary an 
integral part of the procedure of choice, or where in 
fact the primary effectively controls the choice, the 
right of the elector to have his ballot counted at the 
primary, is likewise included in the right protected 
by Article I, § 2. And this right of participation 
is protected just as is the right to vote at the 
election, where the primary is by law made an in­



4

tegral part of the election machinery, whether the 
voter exercises his right in a party primary which 
invariably, sometimes or never determines the ulti­
mate choice of the representative.”

Here registration is a prerequisite to voting in a Congres­
sional election held in the state of Alabama and is an in­
tegral part of the election machinery of the State. Refusal 
to permit a qualified elector to register is as effective a 
deprivation of the right to vote in Congressional elections, 
as is the original refusal to permit one to cast a ballot in a 
general or primary election. Article I, sections 2 and 4 and 
the Seventeenth Amendment, to have any real meaning, 
must apply to each and every step in the electoral process 
which is an integral part of that machinery. This the Court 
recognized in United States v. Classic, supra. The rationale 
of that decision is clearly applicable here.1 That there has 
been a violation of the Fourteenth and Fifteenth Amend­
ments as well is no basis for concluding that Article I, Sec­
tions 2 and 4 and the Seventeenth Amendment have not 
been breached also.

II
Appellees’ Acts Constitute State Action Under the 

Constitution and Laws of the United States.

In order to bolster their basic contention that the refusal 
to register appellant is not state action, appellees interpose 
the argument above that such refusal does not violate 
Article I, sections 2 and 4 and the Seventeenth Amendment, 
which run against individual as well as state action. Ap­
pellees argue that the only provision of the federal Consti­

1 See also Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88 L. 
Ed. 987 (1943).



5

tution which could possibly have been violated are the Four­
teenth and Fifteenth Amendments under which the wrong 
complained of must be the action of the state. Since appel­
lees ’ action violates the Constitution and laws of the state of 
Alabama, they argue that such action cannot be considered 
the action of the state and that, therefore, there is no basis 
for the assertion of federal authority. For this argument 
appellees apparently rely on Barney v. New York, 113 U. S. 
430, 48 L. Ed. 737 (1904) where the United States Supreme 
Court held that where a state official acted without authority 
and contrary to state law, such action was not state action 
within the meaning of the Fourteenth Amendment. In this 
situation the proper procedure, it was felt, was to seek 
redress in the state courts. This ruling has been so greatly 
limited and restricted by subsequent Supreme Court de­
cisions, however, as to be no longer persuasive.

In Raymond v. Chicago Union Traction Company, 207 
U. S. 20, 35, 36, 28 S. Ct. 7, 52 L. Ed. 78, 87 (1907), in consid­
ering the legality of the actions of a State Board in assess­
ing plaintiff’s property allegedly in violation of the Four­
teenth Amendment the Court said:

“ Acting under the constitution and laws of the 
state, the board therefore represents the state, and 
its action is the action of the state. The provisions 
of the 14th Amendment are not confined to the 
action of the state through its legislature, or through 
the executive or judicial authority. Those provisions 
relate to and cover all the instrumentalities by which 
the state acts, and so it has been held that whoever 
by virtue of public position under a state government 
deprives another of any right protected by that 
Amendment against deprivation by the state, violates 
the constitutional inhibition; and as he acts in the 
name of the state and for the state and is clothed 
with the state’s powers, Ms act is that of the state.’ ’



6

In the Raymond case, it was required by the state Con­
stitution that the assessing board levy a tax on every per­
son based on the value of property owned. It was pointed 
out that this constitutional provision had been ignored by 
the Board, thus resulting in an illegal discrimination. The 
Court differentiated the Barney case, on the ground that 
there the act complained of was forbidden by the state legis­
lature, and that no such situation existed in proceedings 
presently before it.

In Home Telephone <&, Telegraph Company v. Los 
Angeles, 227 IT. S. 278, 293, 33 S. Ct. 312, 57 L. Ed. 510, 517 
(1913), the Court in commenting on the Barney case said:

“  • • • ,—the Barney Case,—it might suffice to say, 
as we have already pointed out, was considered in 
the Raymond Case, and if it conflicted with the doc­
trine in that case and the doctrine of the subsequent 
and leading case of Ex Parte Young, is now so dis­
tinguished or qualified as not to be here authoritative 
or even persuasive. But . . . there is no ground for 
saying that that case is authority for overruling the 
settled doctrine which, abstractly, at least, it recog­
nized. If there were room for such a conclusion, . . . 
it would be our plain duty to qualify and restrict 
the Barney Case in so far as it might be found to 
conflict with the rule here applied.” 2

Whatever doubt may have been held that the definition 
of state action in the Barney case was still controlling was 
finally dissipated in United States v. Classic where the 
Court said at page 326:

“ Misuse of powrnr possessed by virtue of state 
law and made possible only because the wrongdoer 
is clothed with the authority of state law, is action 
taken ‘ under color o f ’ state law.”

2 In accord see Iowa-Des Moines Nat’l. Bank v. Bennett, 284 
U. S. 239, 52 S. Ct. 133, 76 L. Ed. 265 (1931).



7

Such action was, therefore, held to be within the reach of 
federal power.3

Attempts were made to resurrect the moribund doctrine 
of Barney v. New York in Snowden v. Hughes, 321 U. S. 
1, 64 S. Ct. 397, 88 L. Ed. 497 (1944), but the Court on page 
13 in referring to the Barney case said :

“ As we conclude that the right asserted by peti­
tioner is not one secured by the Fourteenth Amend­
ment and affords no basis for a suit brought under 
the sections of the Civil Rights Acts relied upon, we 
find it unnecessary to consider whether the action by 
the State Board of which petitioner complains is 
state action within the meaning of the Fourteenth 
Amendment. The authority of Barney v. New York 
. . .  on which the court below relied, has been so re­
stricted by our later decisions, [referring to the cases 
cited supra] that our determination may be more 
properly and more certainly rested on petitioner’s 
failure to asert a right of a nature such as the Four­
teenth Amendment protects against state action.”

Again in Screws v. United States,___IT. S .___ , 88 L. Ed.
1029, an effort was made to have the Court redefine action 
under color of law as only such action as is taken by govern­
mental officials in conformity to state law. Again the Court 
refused to take this position and restated its definition of 
state action announced in United States v. Classic, supra; 
said Mr. Justice Douglas in the majority opinion at page 
1039:

“ It is said, however, that petitioners did not act 
‘ under color of any law’ within the meaning of Sec­
tion 20 of the Criminal Code. We disagree. . . .

“ Some of the arguments which have been ad­
vanced in support of the contrary conclusions sug­
gest that the question under section 20 is whether

3 See also Smith v. Allwright, supra.



8

Congress lias made it a federal offense for a state 
officer to violate the law of his State. But there is 
no warrant for treating the question in state law 
terms. The problem is not whether state law has 
been violated but whether an inhabitant of a State 
has been deprived of a federal right by one who acts 
under ‘ color of any law’. He who acts under ‘ color’ 
of law may be a federal officer or a state officer. He 
mav act under ‘ color’ of federal law or of state 
law'.”

The Court then refers to and quotes with approval that 
portion of the opinion in the Classic case which we have 
quoted on page six and of this brief and continued at page 
1041:

‘ ‘ It is said that we should abandon the holding of 
the Classic case. It is suggested that the present 
problem was not clearly in focus in that case and 
that its holding was ill-advised. A reading of the 
opinion makes plain that the question was squarely 
involved and squarely met. It followed the rule an­
nounced in Ex parte Virginia, . . . that a state judge 
who in violation of state law discriminated against 
[Negroes] in the selection of juries violated the Act 
of March 1, 1875, 18 Stat. 336. It is true that the 
statute did not contain the words under ‘ color’ of 
law. But the Court in deciding what was state action 
within the meaning of the Fourteenth Amendment 
held that it was immaterial that the state officer ex­
ceeded the limits of his authority. ‘ . . .  as he acts 
in the name and for the State, and is clothed with the 
State’s power, his act is that of the State. This must 
be so, or the constitutional prohibition has no mean­
ing. Then the State has clothed one of its agents 
with power to annul or to evade it ’. . . . Reference is 
made to statements of Senator Trumbull in his dis­
cussion of Section 2 of the Civil Rights Act of 1866, 
14 Stat. 27, and to statements of Senator Sherman 
concerning the 1870 Act as supporting the conclusion 
that ‘ under color of any law’ was designed to include



9

only action taken by officials pursuant to state law. 
But those statements in their context are inconclu­
sive on the precise problem involved in the Classic 
case and in the present case. We are not dealing 
here with a case where an officer not authorized to 
act nevertheless takes action. Here the state officers 
were authorized to make an arrest and to take such 
steps as were necessary to make the arrest effective. 
They acted without authority only in the sense that 
they used excessive force in making the arrest effec­
tive. It is clear that under ‘ color’ of law means 
under ‘ pretense’ of law. Thus acts of officers in the 
ambit of their personal pursuits are plainly excluded. 
Acts of officers who undertake to perform their offi­
cial duties are included whether they hew to the line 
of their authority or overstep it.”

In his concurring opinion Mr. Justice Rutledge, at page 
1043, rejected these contentions in the following terms:

“ Strange as the argument is the reason. It comes 
to this, that abuse of state power creates immunity 
to federal power. Because what they did violated 
the state’s laws, the nation cannot reach their con­
duct. It may deprive the citizen of his liberty and 
his life. But whatever state officers may do in abuse 
of their official capacity can give this Government 
and its court no concern. This, though the prime 
object of the Fourteenth Amendment . . . was to se­
cure these fundamental rights against wrongful de­
nial by exercise of the power of the states.

“ The defense is not pretty. Nor is it valid. By 
a long course of decision from Ex Parte Virginia . . . 
to United States v. Classic . . .  it has been rejected. 
The ground should not need plowing again. It was 
cleared long ago and thoroughly.”  4

4 One Justice of the Supreme Court, however, would appear to 
view the doctrine of the Barney v. New York with favor. See the 
concurring opinion of Mr. Justice F r a n k f u r t e r  in Snowden v. 
Hughes, supra, at pages 16, 17 and his dissenting opinion in Screws 
v. United States, supra.



10

It is conclusively settled, therefore, that the action of 
appellees in refusing to register appellant, although he pos­
sessed the requisite qualifications, solely because of his race 
and color and pursuant to a policy, custom and usage of 
denying the equal protection of the laws to Negro applicants 
by refusing to register qualified Negro electors while at the 
same time registering white electors with less qualifications 
than Negroes, was state action within the meaning of the 
14th and 15th Amendments.

CONCLUSION

Appellant has clearly shown by virtue of his original 
brief and this supplemental brief that the judgment of the 
court below was erroneous.

Wherefore, it is respectfully submitted that this 
Court reverse the judgment of the District Court dis­
missing appellant’s amended complaint.

A rthur D. S hores,
1630 Fourth Avenue, No., 
Birmingham 3, Ala.

W illiam H. H astie,
615 F. Street, N. W., 
Washington, D. C.

T hurgood Marshall,
20 West 40th Street,
New York, N. Y.

Attorneys for Appellant.

R obert L. Carter,
New York, N. Y.

Of Counsel.



[ 5092]

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