Hall v. Nagel Brief for Appellant

    1ST T H E

Mnxttb Oltrrutt (Eiwrt nf Appmln
F if t h  Circuit

No. 11,534

EDWARD HALL,
Appellant,

versus
T. J. NAGEL, Registrar of Voters, St. John 

the Baptist Parish, Louisiana,
Appellee.

A P P E A L  FR O M  T H E  D ISTR IC T  COU RT OF T H E  U N IT E D  STATES 

FO R T H E  E A ST E R N  D ISTR IC T  OF L O U ISIA N A

BRIEF FOR APPELLANT
Ml n .1. n       ss s s s h TW*

A. P. T ueeaud ,
J oseph  T hornton ,

612 Iberville Street,
New Orleans, La,

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

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

Attorneys for Appellant.
R obert L. Carter,

New York, N. Y.
Of Counsel.



TABLE O F CONTENTS.

PAGE
Statement of Case_____________________________  1
Statement of F ac ts____________________________  2
Specifications of E rro r__________________________ 4

Argument
I Federal Courts Have Jurisdiction of the Present 

Cause of Action_________________________   5

A. Section 41 (11) and (14) of Title 28 of the
United States Code Gives the Federal Courts 
Jurisdiction of Appellant’s Cause of Action __  5
B. Appellant’s Failure to Pursue or Exhaust
His Bights Under State Law Does Not Oust the 
Federal Courts of Jurisdiction__ __...________ 6

II Appellee’s Befusal to Register Appellant Solely 
Because of His Race or Color Violated the Consti­
tution and Laws of the United States_________ 9

A. The Right to Vote Is Secured by the Fif­
teenth Amendment Against Restrictions Based
on Race or Color______________ _________ ... 9
B. The Right of Qualified Electors of the Several 
States to Choose Members of Congress Is Se­
cured and Protected by Article I, Section 2 and 
by the Seventeenth Amendment of the United
States Constitution_______________________  11

C. The Policy of Requiring Negro Applicants 
for Registration to Submit to Tests Not Re­
quired of Other Applicants Violates the Four­
teenth Amendment _____________________ .... 12

III Appellant May Properly Maintain This Suit as a
Class Action Under Rule 23 (a) of the Federal 
Rules of Civil Procedure_____________   15

IV Appellant May Properly Seek a Declaratory Judg­
ment ____________________________________  19



11

Y Action of Appellee in Refusing to Register Appel­
lant Makes Him Liable to the Appellant for Dam­
ages Under the Provisions of Sections 31 and 43

PAGE

of Title 8 of the United States Code___________  23
VI Conclusion ________________________________  24
Appendix A __________    27
Appendix B ________________________    30
Appendix C ______ ____-______ ___ ________^____ 38

T able of Cases.

Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 57
S. Ct. 461, 81 L. Ed. 617 (1937) ...___________ 20,21

Alston v. School Board, 112 F. (2d) 992 (C. C. A. 4th,
1940) _ J9)22

Atwood v. Natl. Bank of Lima, 115 F. (2d) 861 (C. C.
A. 6th, 1940) _____ ________ .____ .___________ _ 18

Bacon v. Rutland R. Co., 232 IT. S. 134, 34 S. Ct. 283,
58 L. Ed. 538 (1914)._______________ .__ ____ 7

Berry v. Davis, 15 F. (2d) 488 (C. C. A. 8th, 1926)___  6
Breedlove v. Suttles, 302 U. S. 277, 58 S. Ct. 205, 82 L.

Ed. 252 (1937) ____ _________ ._______________  11
Chew v. First Presbyterian Church of Wilmington, 237

Fed. 219 (D. C. Del., 1916)____________________ 16
Clarke et al. v. Goldman, 124 F. (2d) 491 (C. 0. A. 2nd,

1941) ___________ ..... ...__:___ ..._;___ is
Cloyes v. Middlebury Electric Co., 80 Vt. 109, 66 A.

1039 (1907) ___ ..____.....________ _____________  18
Cromwell v. Hillsborough T. P., Somerset County, N.

J., 149 F. (2d) 617 (C. C. A. 3d, 1945) affm. U. S. 
Supreme Court, Oct. Term 1945, decided Jan. 29,
1946 __________________ _________________ ___  22

Davis v. Cook, 55 F. Supp. 1004 (N. D. Ga., 1944)____ 19, 22
Ex Parte Virginia, 100 U. S. 346, 25 L. Ed. 676 (1880) 13
Ex Parte Yarbrough, 110 U. S. 651, 4 S. Ct. 152, 28 L.

Ed. 274 (1884) ......___ ............._______________ ...10,12
Farmers Co.-Op. Oil Co. v. Socony Vacuum Oil Co. Inc,,

133 F. (2d) 101 (C. C. A. 8th, 1942)_____________ 18



I l l

Gilchrist v. Interborough Rapid Transit Co., 279 U. S.
159, 49 S. Ct. 282, 73 L. Ed. 652 (1929)__________  7

Gninn v. United States, 238 U. S. 347, 35 S. Ct. 926,
59 L. Ed. 1340 (1915) _____________________ 6,10,11

Harworden v. Youghengheny & L. Coal Co., I l l  Wis.
545, 87 N. W. 472 (1902)_____________________ 16,18

Home Telephone & Telegraph Co. v. Los Angeles, 227
U. S. 278, 33 S. Ct. 312, 57 L. Ed. 510 (1913)______ 13

Hunter v. Southern Indemnity Underwriters, 47 F. 
Supp. 242 (E. D. Ky., 1942)___________________  17

Independence Shares Corp. et al. v. Deckert, et al., 108
F. (2d) 51 (C. C. A. 3rd, 1939)_______________17,19

Iowa-Des Moines Natl. Rank v. Bennett, 284 U. S. 239,
52 S. Ct. 133, 76 L. Ed. 265 (1931)______________  14

Keavy v. Anderson, 2 F. R. D. 19 (R. I., 1941)„_______  18
Kvello v. Lisbon, 38 N. D. 71, 164 N. W. 305 (1917)__  18
Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872, 83 L. Ed.

1281 (1939)_____________________________ 6,7,8, 9,
10,11, 24

McDaniel v. Board of Public Instruction, 39 F. Supp.
638 (N. D. Fla., 1941)_______________________ 19, 22

Myers v. Anderson, 238 U. S. 368, 35 S. Ct. 932, 59 L.
Ed. 1349 (1915) _________________________10, 11, 24

Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300, 58
S. Ct. 199, 82 L. Ed. 276 (1937)__ ...____________  7

National Hairdressers & Cosmetologists Assn. Inc. v.
Phil. Co., 41 F. Supp. 701 (D. C. Del., 1941)_____17,18

Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed.
984 (1932) ______________________________6,13,15

Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446, 71 L. Ed.
, 759 (1927) ______________________________6,13,15

Oppenheimer, et al. v. T. J. Young & Co. Inc., 144 F.
(2d) 387 (C. C. A. 2d, 1944)__________________ 17,19

Pacific Telephone & Telegraph Co. v. Kuykendall, 265
U. S. 196, 44 S. Ct. 553, 68 L. Ed. 975 (1924)______7, 8

Porter v. Investors Syndicate, 286 U. S. 461, 52 S. Ct.
617, 76 L. Ed. 1226 (1932) affm. on rehearing 287 
U. S. 346, 53 S. Ct. 132, 77 L. Ed. 354 (1932)

PAGE

7



IV

Prentiss v. Atlantic Coast Line Co., 211 U. S. 210, 29 
S. Ct. 67, 53 L. Ed. 150 (1908)_________________7, 8

Railroad & Warehouse Commission Co. v. Duluth Street 
R. Co., 273 IT. S. 625, 47 S. Ct. 489, 71 L. Ed. 807 
(1927) ____________________________________  8

Skinner v. Mitchell, 108 Kan. 861, 197 P. 569 (1921)__  18
Smith v. Allwright, 321 U. S. 649, 64 S. Ct. 757, 88 L.

Ed. 987 (1943) _________________________ 10,11,14,
17, 24

Snowden v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed.
497 (1944) _________________________________  15

State Corporation Commission v. Wichita, 290 U. S.
561, 54 S. Ct. 321, 78 L. Ed. 500 (1934)____ _______  7

Trade Press Pub. Co. v. Milwaukee Type Union, 180
Wis. 499, 193 N. W. 507 (1923)______________   18

Trice Products Corp. v. Anderson Co., 147 F. (2d) 721
(C. C. A. 7th, 1945)________________________  21

Trudeau v. Barnes, 65 F. (2d) 563 (C. C. A. 5th, 
1933) ---------------------------------------------------------  8, 9

United States v. Classic, 313 U. S. 299, 61 S. Ct. 1031,
85 L. Ed. 1368 (1941)____ ______________10,11,14,15

United States v. Mosely, 238 U. S. 383, 35 S. Ct. 904,
59 L. Ed. 1335 (1915)_____________ ,__________  10

United States v. Reese, 92 U. S. 214, 23 L. Ed. 563
(1876) ____________________________________  10

United States v. Sing Tuck, 194 U. S. 161, 24 S. Ct. 621,
48 L. Ed. 917 (1904)__________________________ 8

Weeks v. Bareco Oil Co., 125 F. (2d) 84 (C. C. A. 7th,
1941) __________________________________17,18,19

Wiley v. Sinkler, 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed.
84 (1899) __________________________________ 10

Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L.
Ed. 220 (1886) ___________________________ 13,15

York v. Guaranty Trust Co. of New York, 143 F. (2d)
503 (C. C. A."2d, 1944)_____ ,________________ 18,19

PAGE



V

U nited  S tates C onstitution
page

Section 2, Article I -----------------------------------3, 4, 6,10,11
Fourteenth Amendment_________________ 4, 6,12,13,15
Fifteenth Amendment ______________________4, 6, 9,17
Seventeenth Amendment___________________ 4, 6, 10,11

L ouisiana  Constitution

Section 1, Article VIII________________________ 3,10,12
Section 5, Article VIII__________________________ 6
Section 6, Article VIII__________________________ 3
Section 17, Article VIII_________________________ 12
Section 18, Article VIII________________________ 12,15

S tatutes

Section 31, Title 8, U. S. Code________________4, 6, 23, 24
Section 43, Title 8, U. S. Code_______ ..._______ 4, 6, 23, 24
Section 400, Title 28, U. S. Code (Section 274, Judicial

Code) _______________________________  _ 19
Section 41 (11), Title 28, U. S. Code_____________ 4, 5
Section 41 (14), Title 28, U. S. Code________________ 4, 6
La. Gen. Stat. (Dart), 1939, Sec. 2614.10; 2615.11;

2615.14; 2615.16; 2615.19; 2615.21__________ 1____  3
26 Okla. Stat. Sec. 74___________________________  9

T reatises and A rticles

Anderson, Declaratory Judgments (1940)___________ 20
Borchard, Declaratory Judgments (2nd Ed. 1941)__ 20
Wheaton, Representative Suits Involving Numerous

Litigants, 19 Corn L. Q. 399, 407, 433 (1934)_____16,17
Moore, Federal Practice (1938)__________________ 16,17
18 Am. Jur. 332 Section 62_______________________  20



1ST T H E

Irnfrd B M xb (Exxxnxt (Bmxt at Appeals
F or t h e  F if t h  C ircuit

No. 11,534

E dward H all,
Appellant,

vs.
T. J. N agel, Registrar of Voters, St. John the Baptist 

Parish, Louisiana,
Appellee.

appeal from  t h e  district court of t h e  u n ited  states

FO R  T H E  E A ST E R N  D IST R IC T  OF L O U ISIA N A

BRIEF FOR APPELLANT

P A R T  O N E
Statem ent of the Case

This is an appeal by the plaintiff, Edward Hall, from an 
order entered in the District Court of the United States for 
the Eastern District of Louisiana, New Orleans Division, 
on September 17, 1945, sustaining the Motion to Dismiss 
filed by appellee and dismissing the suit of the appellant 
(R. 27).

The amended complaint, filed on September 10, 1945 (R. 
14-23) alleged that on or about August 4,1944 the defendant 
below, as registrar of voters of St. John the Baptist Parish, 
following a general policy, custom and usage of refusing



o

to register qualified Negro electors, refused to register 
plaintiff below solely on account of race and color. It is 
alleged that defendant below maintained a policy, custom 
and usage of denying to plaintiff below and other qualified 
Negro electors the equal protection of the laws by requir­
ing them to submit to tests not required of white electors 
and refusing to register qualified Negro electors while at 
the same time registering white electors with less qualifica­
tions than Negro applicants solely on account of race and 
color. In addition, the allegation was made that this re­
fusal and denial were violative of the Constitution and laws 
of the United States. The complaint prayed for a declara­
tory judgment, a permanent injunction and Five Thousand 
Dollars in damages (R. 9, 21-22).

Defendant filed a motion to dismiss the complaint on 
August 17,1945 and reasons and authority in support thereof 
on August 22, 1945. On September 12, 1945 a hearing was 
held on defendant’s motion to dismiss, and oral argument 
was presented in support of and against said motion (R. 
26). Thereupon on September 17, 1942 Judge A drian J. 
Caillotjet issued the following order: “ Now, therefore
after due consideration, it is ordered that the motion to dis­
miss be, and the same is hereby, maintained and this suit 
dismissed at plaintiff’s costs” (R. 27). The Court did not 
file an opinion.

Statem ent of Facts

The allegations of the complaint set forth that: Appel­
lant is a colored person of African descent and of Negro 
blood. He is a native-born citizen of the United States. 
He has maintained a bona fide residence in the fifth ward of 
the Parish of St. John the Baptist in the State of Louisiana 
for more than ten years and is over twenty-one years of 
age. He is of good moral character and understands the



3

duties and obligations of citizenship under a republican 
form of government. He has never been convicted of any 
crime. He is not an idiot or insane person. He can read 
and write the English language, can correctly fill the applica­
tion form required by law for registering as an elector, and 
can read any clause in both the Constitution of the United 
States and that of the State of Louisiana (R. 4, 5, 17). In 
short, appellant has met all the requirements of the Consti­
tution and laws of the United States and of the State of 
Louisiana necessary to entitle him to register and vote. 
(Constitution of United States, Article I, Section 2 and 
Amendment XVII; Constitution of Louisiana, Article VIII, 
Section 1 and 6, Dart’s General Statutes, Sections 2615.10, 
2615.11, 2615.14, 2615.15, 2615.16, 2615.19, 2615.21).

Both parties to this action are citizens of the United 
States and are residents of and domiciled in St. John the 
Baptist Parish, State of Louisiana (R. 3, 15).

Appellee is the duly appointed, qualified and active 
registrar of voters of St. John the Baptist Parish (R. 5) 
and was acting in that capacity on August 4, 1944 when 
appellant presented himself for registration. At such time 
appellee refused to give him an application form to be filled 
in order to test his ability to read and write and to furnish 
on said application under oath the essential facts necessary 
to show that he was entitled to register and vote. Instead 
appellee took appellant aside and questioned him as follows:

“ What judicial district do you live in?”
Answer: “ twenty-fourth.”
“ What congressional district?”
Answer: “ S econd. ’ ’
“ What senatorial district?”
Answer: “ I don’t know.’’

Not being satisfied with the answer, appellee refused to 
register him (R. 19).



4

P A R T  T W O

Specifications o f Errors

The District Court erred:
1. In maintaining appellee’s motion to dismiss and in 

dismissing appellant’s suit.
2. In refusing to find that the Court had jurisdiction 

under subdivisions 11 and 14 of Section 41 of Title 28, and 
under sections 31 and 43 of Title 8, of the United States 
Code.

3. In refusing to find that appellee’s wrongful acts as 
set forth in the amended complaint deprived appellant and 
all those similarly situated of the equal protection of the 
laws in violation of the Fourteenth Amendment to the 
United States Constitution.

4. In refusing to find that by virtue of appellee’s wrong­
ful acts as alleged in the amended complaint appellant and 
others on whose behalf this suit was brought were denied 
the rights secured by Section 2 of Article I  and by the 
Seventeenth Amendment of the United States Constitution 
to all citizens of the United States to participate in an 
election of federal officers.

5. In refusing to find that appellee’s acts as alleged in 
the amended complaint deprived appellant of the right to 
vote solely on account of race or color in violation of the 
Fifteenth Amendment to the United States Constitution.

6. In refusing to find that appellee’s conduct as alleged 
in the amended complaint made him liable to appellant in 
damages under the provisions of Section 31 and 43 of Title 
8 of the United States Code.

7. In refusing to find that appellant could properly 
bring this action on his own behalf and on behalf of all



other qualified Negro electors residing in St. John the 
Baptist Parish under the provisions of Rule 23 (a) of the 
Federal Rules of Civil Procedure.

8. In refusing to find that appellant could properly 
maintain this suit in the form of an action seeking a de­
claratory judgment.

P A R T  T H R E E  

ARGUM ENT  

I
Federal Courts H ave Jurisdiction of the Present 

Cause o f A ction.

A . Section 41 ( 1 1 )  an d  (1 4 )  o f T itle  28  of th e  
U n ited  S ta te s  C ode G ives th e  F edera l C ourts 
Jurisd iction  of A p p e lla n t’s  C ause o f A ction .

Jurisdiction is invoked pursuant to subdivisions 11 and 
14 of Section 41 of Title 28 of the United States Code. 
Subdivision 11 of Section 41 provides:

“ The district courts shall have original jurisdic­
tion as follows: * * * ‘Of all suits brought by any 
person to recover damages for any injury to his per­
son or property on account of any act done by him, 
under any law of the United States, for the protec­
tion or collection of any of the revenues thereof, or 
to enforce the right of citizens of the United States 
to vote in the several states.’ ” (Italics ours.)

This is an action to recover damages for refusal of ap­
pellee, registrar of voters in St. John the Baptist Parish, 
to register appellant and Negro qualified applicants simi­
larly situated solely on account of their race and color. 
Since such registration is a prerequisite to the right of a 
citizen of the United States to vote in any election in the 
State of Louisiana, including the election of federal officers, 
the refusal of appellee was an effective deprivation of the



6

voting privilege. As such the federal courts clearly have 
jurisdiction: Nixon v. Herndon, 273 IT. S. 536, 47 S. Ct. 446 
71 L. Ed. 759, (1927); Nixon v. Condon, 286 IT. S. 73, 52 S. 
Ct. 484, 76 L. Ed. 984 (1932); Lane v. Wilson, 307 IT. S. 
268, 59 S. Ct. 872, 83 L. Ed. 1281 (1939); Guinn v. United 
States, 238 U. S. 347, 35 8. Ct. 926, 59 L. Ed. 1340 (1915) ; 
Berry v. Davis, 15 P. (2d) 488 (C. C. A. 8th, 1926).

Subdivision 14 of section 41 of Title 28 provides:
“ The district court shall have original jurisdic­

tion as follows: * * * ‘ Of all suits at law or in equity 
authorized by law to be brought by any person to 
redress the deprivation, under 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.’ ’’

Appellant’s suit also is an action at law to redress the 
deprivation under color of law, statute, regulation, custom 
or usage of a right, privilege, or immunity secured by the 
Constitution, namely, Section 2 of Article I, Fourteenth, 
Fifteenth and Seventeenth Amendments, and of a right se­
cured by law of the United States providing for equal rights 
of citizens, namely, sections 31 and 43 of Title 8 of United 
States Code.

B. A p p e lla n t’s F ailure to  P ursue or E xhaust H is 
R igh ts U nder S ta te  L aw  D oes N o t O ust th e  
F ed era l C ourts of Jurisdiction .

The Constitution of Louisiana, Article VIII, Section 5 
provides the following redress for any applicant who is re­
fused registration:

“ Any person possessing the qualifications for 
voting prescribed by this Constitution, who may be



7

denied registration, shall have the right to apply for 
relief to the district court having jurisdiction of 
civil causes for the parish in which he offers to regis­
ter. Said court shall then try the cause, giving it 
preference over all other eases, before a jury of 
twelve, nine of whom must concur to render a ver­
dict. This verdict shall be a final determination of 
the cause. The trial court may, however, grant one 
new trial by jury. In no cases shall any appeal lie 
or any other court exercise the right of review.”

The redress herein provided is not an administrative 
remedy but is in the nature of a conventional judicial pro­
ceeding, and the rule is firmly fixed that the remedy avail­
able in the State courts need not be exhausted before an 
action is maintainable in federal courts where the State 
remedy is judicial in nature. State Corporation Commis­
sion v. Wichita, 290 U. S. 561, 54 S. Ct. 321, 78 L. Ed. 500 
(1934); Porter v. Investors Syndicate, 286 U. S. 461, 52 S. 
Ct. 617, 76 L. Ed. 1226 (1932) affm. on rehearing 287 U. S. 
346, 53 S. Ct. 132, 77 L. Ed. 354 (1932); Bacon v. Rutland 
R. Co., 232 U. S. 134, 34 S. Ct. 283, 58 L. Ed. 538 (1914); 
Pacific Telephone <& Telegraph Co. v. Kuykendall, 265 U. S. 
196, 44 S. Ct. 553, 68 L. Ed. 975 (1924); Lane v. Wilson, 
supra. Whenever the question has been presented the 
United States Supreme Court has examined the remedy 
provided to determine whether it was legislative or ju­
dicial in nature. Prentiss v. Atlantic Coast Line Co., 211
U. S. 210, 29 S. Ct. 67, 53 L. Ed. 150 (1908); Lane v. Wilson, 
supra: Pacific Telephone & Telegraph Co. v. Kuykendall, 
supra; Porter v. Investors Syndicate, supra. Only in the 
former instance was it deemed necessary that the remedies 
open in the state be utilized before a suit could be per­
fected in the federal courts. Natural Gas Pipeline Co. v. 
Slattery, 302 U. S. 300, 58 S. Ct. 199, 82 L. Ed. 276 (1937); 
Porter v. Investors Syndicate, supra; Gilchrist v. Inter­
borough Rapid Transit Co., 279 U. S. 159, 49 S. Ct. 282, 73



8

L. Ed. 652 (1929); Railroad and Warehouse Commission 
Co. v. Duluth Street R. Co., 273 U. S. 625, 47 S. Ct. 489, 71 
L. Ed. 807 (1927); Pacific Telephone & Telegraph Co. v. 
Kuykendall, supra; Prentiss v. Atlantic Coast Line Co., 
supra; United States v. Sing Tuck, 194 U. S. 161, 24 S. Ct. 
621, 48 L. Ed. 917 (1904).

In Lane v. Wilson, supra, in answering an objection that 
remedies in the courts of Oklahoma should have been ex­
hausted before the immediate action could be maintained in 
the Federal Court, the Court said at page 274:

“ Normally, the state legislative process, some­
times exercised through administrative powers con­
ferred in state courts, must be completed before re­
sort to the federal courts can be had * * *. But the 
state procedure open for one in the plaintiff’s situa­
tion (Sec. 5654) has all the indicia of a conventional 
judicial proceeding and does not confer upon the 
Oklahoma courts any of the discretionary or initia­
tory functions that are characteristic of administra­
tive agencies # * *. Barring only exceptional circum­
stances, * # * or explicit statutory requirements, * * # 
resort to a federal court may be had without exhaust­
ing the judicial remedies of state court.” 1

The Oklahoma Statute (26 Okla Stat. Sec. 74) under 
consideration provided a remedy for failure to register a

1 Compare Trudeau v. Barnes, 65 F. (2d) 563 (C. C. A. 5th, 
1933). This was an appeal from a judgment in the court below 
dismissing a petition to recover damages for deprivation of the right 
to register as a voter in the state of Louisiana. The petition attempted 
to allege two inconsistent causes of action. In one petitioner con­
tested the arbitrary refusal of the registrar to register him on the 
ground that such action was contrary to the Constitutian and laws 
of Louisiana. The other was based on the ground that the “under­
standing clause” of the Louisiana Constitution was violative of the 
Fourteenth and Fifteenth Amendments. This Court stated as to the 
first cause of action that the petition failed to allege facts sufficient to 
show that the petitioner was entitled to register. As to the other
Continued on page 9.



9

qualified voter similar to the constitutional provision in 
Louisiana discussed, supra. The Oklahoma statute pro­
vided in part “ and provided further, that wherever any 
elector is refused registration by any registration officer 
such action may be reviewed by the district court of the 
county by the aggrieved elector by his filing within ten days 
a petition with the Clerk of said Court whereupon summons 
shall be issued to said registrar requiring him to answer 
within ten days, and the district court shall be an expedi­
tious hearing and from his judgment an appeal will lie at 
the instance of either party to the Supreme Court of the 
State as in civil cases. # # * ”

II
A p p ellee ’s R efusal to R egister A p p ellan t Solely
B ecause of His Race or Color V iolated  the Consti­

tution and Laws o f the U nited States.

A . T he R igh t to  V o te  Is S ecu red  b y  th e  F ifteen th  
A m en d m en t A g a in st R estriction s B ased  on 
R ace or Color.

The State of Louisiana makes registration a prerequi­
site to the right to qualify as an elector and vote in any
Continued from page 8.
cause of action, this Court found that the understanding clause vio­
lated neither the Fourteenth nor the Fifteenth Amendments since it 
applied equally to all voters and was not based on race or color. This 
was all that was necessary for this Court’s decision, but the opinion 
goes further to consider the provisions of the Louisiana Constitution, 
Article VIII, Section 5, supra, and said that it was necessary for the 
remedy afforded under the state constitution to be exhausted before 
the right to sue for damages in a federal court could accrue. Since 
the latter statement was not essential to the Court’s holding it cannot 
be considered persuasive or determinative. At any rate, it is incon­
sistent with Supreme Court cases discussed above which have con­
sistently held that where the remedy afforded is judicial in nature 
it need not be exhausted before resort can be had to the federal 
court. If Trudeau v. Barnes is contrary therewith, it cannot stand. 
This seems an inescapable conclusion in view of the opinion of the 
Supreme Court in Lane v. Wilson, supra, where the remedy provided 
was almost identical to that here and much more adequate.



1 0

election held within the State. Section 1, Article VIII, 
Louisiana Constitution. This requirement by the very 
terms of Article 1, Section II and the Seventeenth Amend­
ment to the United States Constitution is incorporated 
therein and becomes a prerequisite for voting in any elec­
tion in the State held to choose Louisiana’s Congressional 
and Senatorial representatives.2

Precedents of the United States Supreme Court have 
firmly fixed the rule that all regulations which are designed 
to prevent persons from qualifying to vote solely on the 
basis of race or color cannot stand in the face of the express 
terms of the Fifteenth Amendment. Lane v. Wilson, supra; 
Myers v. Anderson, 238 U. S. 368, 35 S. Ct. 932, 59 L. Ed. 
1349 (1915); Guinn v. United States, supra. This consti­
tutional guaranty still leaves the states free to enact rea­
sonable regulations concerning suffrage and to demand that 
its electors meet reasonable requirements and standards as 
long as such regulations, requirements and standards are 
not based on considerations of race or color. United States 
v. Reese, 92 U. S. 214, 23 L. Ed. 563 (1876); Lane v. Wilson, 
supra; Guinn v. United States, supra; Smith v. AlhurigM, 
321 U. S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1943). See anno­
tation on effect of the Fifteenth Amendment in 23 L. Ed. 563.

Despite the wide authority and discretion which a state 
may validly exercise in regulating the election process, the 
right to vote is considered as a right grounded in the Fed­
eral Constitution. United States v. Classic, 313 U. S. 299, 
61 S. Ct. 1031, 85 L. Ed. 1368 (1941); Ex parte Yarbrough, 
110 U. S. 651, 4 S. Ct. 152, 28 L. Ed. 274 (1884); Wiley v. 
Sinkler, 179 U. S. 58, 21 S. Ct. 17, 45 L. Ed. 84 (1899); 
United States v. Mosely, 238 U. S. 383, 35 S. Ct. 904, 59 L. 
Ed. 1355 (1915). But cf. United States v. Reese, supra;

2 See infra a detailed discussion of this question.



1 1

Breedlove v. Buttles, 302 U. S. 277, 58 S. Ct. 205, 82 L. Ed. 
252 (1937) and annotation in 23 L. Ed. 563, supra.

It is now clearly settled that the provisions of the Fif­
teenth Amendment may effectively reach each and every 
stage of the electoral process. Wherever in that process, 
restrictions of race and color are erected, such restrictions 
violate the Fifteenth Amendment. Myers v. Anderson, 
supra; Guinn v. United States, supra; Lane v. Wilson, 
supra; United States v. Classic, supra; Smith v. Allwright, 
supra. Refusal to permit one to register, therefore, solely 
on the basis of race and color is clearly within the prohibi­
tions of the Fifteenth Amendment and has been so held. 
Lane v. Wilson, supra; Myers v. Anderson, supra; Guinn 
v. United States, supra.

B. T he R ig h t of Q ualified  E lectors of th e  S evera l 
S ta tes  to  Choose M em bers o f C ongress Is Se­
cu red  an d  P ro tec te d  b y  A r tic le  I, Section  2  an d  
b y  th e  S even teen th  A m en d m en t o f th e  U n ited  
S ta tes  C onstitution .

Section 2 of Article I  of the Constitution of the United 
States provides that members of House of Representatives 
shall be chosen every second year by the people of the 
several states and that the electors in each state shall have 
the qualifications requisite for electors of the most numer­
ous branch of the State Legislature.

The Seventeenth Amendment of the United States Con­
stitution provides that the United States Senate shall con­
sist of two Senators from each state chosen by electors in 
each state with the qualifications requisite for electors of 
the most numerous branch of the state legislature.

The right of electors of the several states to choose 
their representatives is a right secured and guaranteed by



1 2

the Federal Constitution to those citizens of the several 
states entitled to exercise that power. Since these constitu­
tional provisions are without qualifying limitations, the 
rights therein guaranteed run against individual as well as 
state action. Ex parte Yarbrough, supra; United States v. 
Classic, supra.

This Court may take judicial notice of the fact that in 
1944, elections were held throughout the United States, in­
cluding Louisiana, for the election of members of the House 
of Representatives and that simultaneously therewith an 
election was held in Louisiana for the choice of one of its 
Senatorial representatives. Registration is a prerequisite 
for participation in such elections in the State of Louisiana 
and is therefore an integral part of the election process.

C. T he P o licy  of R equ irin g  N egro  A p p lic a n ts  fo r  
R eg istra tion  to  Subm it to  T ests N ot R equ ired  
of O th er A p p lica n ts  V io la tes th e  F ourteenth  
A m en dm en t.

The appellee in the present proceeding was a state ad­
ministrative officer exercising authority in connection with 
functions of the State of Louisiana (Louisiana Constitu­
tion, 1921, Section 1, 17, 18 of Article VIII). The acts of 
appellee were committed in the course of the performance 
of his official duty of registering qualified electors within St. 
John the Baptist Parish, pursuant to the Constitution and 
laws of the state.

Appellee contends that since no allegations were made 
that any state law, statute or Constitution operated in a 
discriminatory manner and since appellee’s acts were viola­
tive of the Constitution and laws of the State, that there 
was no showing of state action; hence this action is not 
within the reach of Federal power.



13

The pertinent provision of the Fourteenth Amendment 
which has been held to forbid discrimination with respect 
to the exercise of the franchise is that clause commonly 
called the equal protection clause which provides that: “ No 
state shall deny # * # to any person within its jurisdiction 
the equal protection of the laws.” Nixon v. Herndon, supra; 
Nixon v. Condon, supra. This provision is clearly violated 
where a law however fair on its face is administered in a 
discriminatory manner. Tick Wo v. Hopkins, 118 U. S. 356, 
6 S. Ct. 1064, 30 L. Ed. 220 (1886). Although this Amend­
ment reaches state action only, state action within the mean­
ing of its provisions is action of any agent who is a reposi­
tory of state authority. Said the Court in Ex Parte Virginia, 
100 U. S. 339, 346, 347, 25 L. Ed. 676 679 (1880):

“ We have said the prohibitions of the Fourteenth 
Amendment are addressed to the States. * * # They 
have reference to actions of the political body denom­
inated a State, by whatever instruments or in what­
ever modes that action may be taken. A State acts 
by its legislative, its executive or its judicial authori­
ties. It can act in no other way. The constitutional 
provision, therefore, must mean that no agency of 
the State or of the officers or agents by whom its 
powers are exerted, shall deny to any person within 
its jurisdiction the equal protection of the laws. 
Whoever, by virtue of public position under a State 
government, deprives another of property, life, or 
liberty, without due process of law, or denies or takes 
away the equal protection of the laws, violates the 
constitutional inhibition; and 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 meaning. 
Then the State has clothed one of its agents with 
power to annul or to evade it.”

In Home Telephone dfr Telegraph Company v. City of 
Los Angeles, 227 IT. S. 278, 287, 33 S. Ct. 312, 57 L. Ed. 510,



14

515 (1913), the Court sp ea k in g  through Chief Justice 
W h it e  s a id :

“ * * * the theory of the (14th) Amendment is 
that where an officer or other representative of a 
state, in the exercise of the authority with which he 
is clothed, misuses the power possessed to do a 
wrong forbidden by the Amendment, inquiry con­
cerning whether the state has authorized the wrong 
is irrelevant, and the Federal judicial power is com­
petent to afford redress for the wrong by dealing 
with the officer and the result of his exertion of 
power * *

In Iowa-Des Moines National Bank v. Bennett, 284 U. S. 
239, 246, 52 S. Ct. 133, 76 L. Ed. 265, 272 (1931), the United 
States Supreme Court said:

“ When a state official, acting under color of state 
authority, invades, in the course of his duties, a 
private right secured by the federal Constitution, 
that right is violated, even if the state officer not only 
exceeded his authority but disregarded special com­
mands of the state law.”

Recently in United States v. Classic, supra, the Court 
said:

“ Misuse of power, 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 of’ State Law.”

The instant case is similar in context to the situation 
presented in the Classic case, and in Smith v. Allwright. 
The rationale of the decision in the Classic case applies to 
the instant proceeding since there can be no doubt that 
appellee was an officer of the state. He is commissioned by 
the Governor, receives one-half of his salary from the state 
and one-half from the parish in which he serves and is sub­



15

ject to removal by a majority vote of the Board of Regis­
tration (Constitution of Louisiana, Section 18, Article 
VIII).

It is alleged that appellee was pursuing a policy, custom 
or'usage of subjecting qualified Negro electors to tests not 
required of white applicants, nor by the laws and Constitu­
tion of the State in determining the qualifications of an 
elector. Appellee further was pursuing a policy, custom or 
usage of denying to Negro qualified applicants the right to 
register while at the same time registering white electors 
with less qualifications than those possessed by colored ap­
plicants (R. 18-19). This is clearly a denial of equal pro­
tection of the laws within the meaning of the Fourteenth 
Amendment. Nixon v. Herndon, supra, Nixon v. Condon, 
supra, United States v. Classic, supra. See also Snowden 
v. Hughes, 321 IT. S. 1, 64 S. Ct. 397, 88 L. Ed. 497 (1944), 
Yick Wo v. Hopkins, supra. Whether the acts were in con­
formity with or in violation of state law is no longer the 
controlling issue in determining what constitutes state ac­
tion. Even though the action complained of is contrary to 
state law, if the power which is misused is possessed by 
virtue of state law and state authority, the action is under 
color of state law within the meaning of the Fourteenth 
Amendment.

Ill

A p p ellan t M ay Properly M aintain This Suit as a 
Class A ction  Under Rule 23 (a )  o f the Federal 

Rules of Civil Procedure.

Under Rule 23 (a) of the Federal Rules of Civil Pro­
cedure one or more persons adequately representative of 
all may bring an action on behalf of all members of a class, 
where the persons constituting the class are sufficiently



16

numerous to make it impracticable to bring them all before 
the court, and where the character of the right under litiga­
tion is “ several, and a common relief is sought”. Appel­
lant instituted the present proceeding in the Court below 
on behalf of himself and as a representative of a class, 
composed of Negro citizens of the United States, residents 
and citizens of the State of Louisiana, similarly situated, 
who are qualified to register as voters in St. John the Bap­
tist Parish of the aforesaid state, under the Constitution 
and laws of the United States and of the State of Louisiana 
(R. 15-16). The question herein presented—whether a 
registrar may maintain a policy, custom or usage of deny­
ing to members of this class equal protection of the laws by 
requiring them because of their race and color to submit to 
tests not required of white electors and of refusing to 
register them on grounds not required by the Constitution 
and laws of Louisiana—involve rights of common and gen­
eral interest to all members of the class represented by 
appellant.

The class suit evolved early in English equity3 as a 
device to escape the difficulties inherent in compulsory 
joinder and to permit a single litigation of group injuries 
in cases of common interest.4 With Federal Rule 23 (a)

3 See on whole development 2 Moore, Federal Practice (1938), 
2224 et seq.

4 Common interest has been variously defined. See Wheaton, 
Representative Suits Involving Numerous Litigants (1934) 19 Corn. 
L. Q. 399, 407, 433. (Composite definitions of common interest.) 
In addition to the difficulty in defining common interest, the courts 
have been in disagreement as to whether the common interest need 
be, only in question of law. Harworden v. Youghengheny & L. 
Coal Co., I l l  Wis. 545, 87 N. W. 472 (1902) or in both questions 
of law and fact, Chew v. First Presbyterian Church of Wilmington, 
237 Fed. 219 (I). C. Del. 1916). The codifiers of Rule 23 (a) must 
have been aware of these conflicts and difficulties however for it 
expressly provided that the common interest may be either in law or 
fact.



17

this age-old doctrine was reformulated to suit the needs of 
modern practice.5 6

Under this provision it is not necessary that all mem­
bers of the class join in the suit. It is merely necessary 
that one or more persons adequately representative of the 
entire class institute an action. The other members of the 
class may join as they see fit.8 The present litigation is 
that type of class action labeled “ spurious”, Independence 
Shares Corp. et al. v. Dechert, et al., 108 F. (2d) 51 (C. C. A. 
3d, 1939); Weeks v. Bareco Oil Co., 125 F. (2d) 84 (C. C. A. 
7th, 1941); see Hunter v. Southern Indemnity Under­
writers, 47 F. Supp. 242 (E. I). Ky., 1942); Natl. Hair­
dressers & Cosmetologists Assn. Inc. v. Phil. Co., 41 F. 
Supp. 701 (D. C. Del., 1941); Oppenheimer, et al. v. T. J. 
Young & Co. Inc., 144 F. (2d) 387 (C. C. A. 2d, 1944); see 
also Moore op. cit. supra note 3, and requires nothing more 
than a group with a common interest, seeking common re­
lief, to constitute the class.

The instant proceeding cannot be viewed merely as the 
discriminatory practices of an individual administrative 
officer against an individual seeking to qualify for registra­
tion but must be viewed in contest as part of a scheme or 
device to effectively disfranchise all qualified Negroes. 
Although the Fifteenth Amendment was specifically de­
signed to prevent barriers to the franchise being imposed 
based on race or color, it has been necessary for the Su­
preme Court to invalidate hurdle after hurdle erected 
to circumvent this constitutional guaranty and deprive 
Negroes of the right to vote. The last of these barriers, 
the right to participate in a primary election, was leveled 
in Smith v. Allwright, supra. Under the authority of that

5 Every state today has a statute permitting class actions. The pro­
vision common to all these statutes is the “common or general inter­
est” of many persons. See Wheaton, op. cit. supra. Note 4.

6 See Moore, op. cit. supra. Note 3.



18

decision, Negro citizens of the United States and residents 
of Louisiana possessing the necessary qualifications of 
electors attempted to register as voters.

In refusing to register appellant and in subjecting him 
to tests not required by the state constitution and to which 
white applicants were not subjected, appellee was pursuing 
a policy, custom or usage of denying registration to Negro 
applicants. All Negroes similarly situated to appellant 
have a common interest in the questions herein presented 
because of appellee’s wrongful acts, and in having these 
questions clarified and determined as they affect the exer­
cise of a fundamental right secured to them by the Federal 
Constitution. The courts have never based their decision 
on the propriety of a class suit on whether the persons 
similarly situated actually formed a class in esse before 
the injury complained of occurred, but only on whether the 
proceeding under inquiry met the statutory requirements. 
See York v. Guaranty Trust Co. of New York, 143 F. (2d) 
503 (C. C. A. 2nd, 1944); Keavy v. Anderson, 2 F. E. D. 19 
(E. I., 1941); Atwood v. Natl. Bank of Lima, 115 F. (2d) 
861 (C. C. A. 6th, 1940); Farmers Co.-Op. Oil Co. v. Socony 
Vacuum Oil Co. Inc., 133 F. (2d) 101 (C. C. A. 8th, 1942); 
Clarke, et at. v. Goldman, 124 F. (2d) 491 (C. C. A. 2nd, 
1941) Where a group of people are similarly injured by 
common practices of another, it is recognized that scope of 
the injury creates the required class.7 Although registra­

7 Harworden v. Youghengheny, 111 Wis. 547, 87 N. W. 472 
(1901) ; Trade Press Pub. Co. v. Milwaukee Type Union, 180 Wis. 
499, 193 N. W. 507 (1923) class action permitted to enjoin a wrong­
ful conspiracy; Weeks v. Bareco Oil Co., supra, class action permitted 
to recover damages caused by unlawful conspiracy; Cloyes v. Middle- 
bury Electric Co., 80 Vt. 109, 66 A. 1039 (1907) class suit permitted 
to enjoin a nuisance; Natl. Hairdressers & Cosmetologists Assn. Inv. 
v. Phil. Co., supra, class suit permitted to declare patent invalid and 
to enjoin defendants from asserting that plaintiff’s infringed their 
patent rights; Skinner v. Mitchell, 108 Kan. 861, 197 P. 569 (1921) ; 
Kvello v. Lisbon, 38 N. D. 71, 164 N. W. 305 (1917), class action 
permitted to enjoin an invalid tax.



19

tion eoncecledly presents individual questions, these inde­
pendent issues have not been considered relevant in deter­
mining whether a class suit could be instituted so long’ as 
apart from the independent questions which had to be 
settled, there was presented some fundamental question of 
common interest. See York v. Guaranty Trust Co., supra; 
Independence Shares Corp. v. Deckert, supra; Oppenheimer, 
et al. v. T. J. Young Co. Inc., supra; Alston v. School Board, 
112 F. (2d) 992 (C. C. A. 4th, 1940); McDaniel v. Board of 
Public Instruction, 39 F. Supp. 638 (N. D. Fla., 1941); Davis 
v. Cook, 55 F. Supp. 1004 (N. D. Ga., 1944).

As the Court said in Weeks v. Bareco Oil Co., supra:
“ The history of class suit litigation, its history 

over a century of growth, the origin and status of 
present Rule 23 of the Federal Rules of Civil Pro­
cedure, are all persuasive of the necessity of a liberal 
construction of this Rule 23, and its application to 
this class of litigation. It should be construed to 
permit a class suit where several persons jointly act 
to the injury of many persons so numerous that their 
voluntarily, unanimously joining in a suit is con- 
cededly improbable and impracticable. Under such 
circumstances injured parties who are so mindful 
may present the grievance to Court on behalf of all, 
and the remaining members of the class may join as 
they see fit.”

IV

A p p ellan t M ay Properly Seek a D eclaratory Judgm ent.

Judicial Code, section 274d (28 U. S. C. 400) provides:
“ In cases of actual controversy (except with re­

spect to Federal taxes) the courts of the United 
States shall have power upon petition, declaration, 
complaint, or other appropriate pleadings to declare 
rights and other legal relations of any interested 
party petitioning for such declaration, whether or



2 0

not further relief is or could be prayed and such 
declaration shall have the force and effect of a final 
judgment or decree and be reviewable as such. ’ ’

It is well established that a prayer for relief by declara­
tory judgment may be joined with prayers for consequen­
tial relief. Anderson on Declaratory Judgments (1940 at 
p. 253); Borchard on Declaratory Judgments (2d ed. 1941) 
at 432; 18 Am. Jur. (Declaratory Judgments) sec. 62, p. 
332; see also: Rule 18, Federal Rules of Civil Procedure.

The leading case on declaratory judgments is the case 
of Aetna Life Insurance Company v. Haworth, 300 IT. S. 
227, 57 S. Ct. 461, 81 L. Ed. 617 (1937) where the Court 
speaking through Mr. Chief Justice H ughes  stated:

“ The Declaratory Judgment Act of 1934, in its 
limitation to ‘cases of actual controversy’ manifestly 
has regard to the constitutional provision and is op­
erative only in respect to controversies which are 
such in the constitutional sense. The word ‘actual’ 
is one of emphasis rather than of definition. Thus 
the operation of the Declaratory Judgment Act is 
procedural only. In providing remedies and defining 
procedure in relation to cases and controversies in 
the constitutional sense the Congress is acting within 
its delegated power over the jurisdiction of the fed­
eral courts which the Congress is authorized to estab­
lish. # * * Exercising this control of practice and 
procedure the Congress is not confined to traditional 
remedies. The judiciary clause of the Constitution 
‘did not crystallize into changeless form the proce­
dure of 1789 as the only possible means for present­
ing a case or controversy otherwise cognizable by 
the federal courts. Nashville, C. & St. L. Ry. Co. v. 
Wallace, 288 U. S. 249, 264. In dealing with methods 
within its sphere of remedial action the Congress 
may create and improve as well as abolish or restrict. 
The Declaratory Judgment Act must be deemed to 
fall within this ambit of congressional power, so far



2 1

as it authorizes relief which is consonant with the 
exercise of the judicial function in the determination 
of controversies to which under the Constitution the 
judicial power extends.”

The decision in the Aetna case has been uniformly followed. 
In one of the latest Circuit Court of Appeals decisions 
Trice Products Corporation v. Anderson Co., 147 F. (2d) 
721 (C. C. A. 7th, 1945), following this case in upholding 
the right to a declaratory judgment in a cross-complaint in 
a patent case it was stated:

“ Equity abhors multiplicity of actions and when 
it takes jurisdiction for one purpose should do so for 
all germane purposes and dispose of all issues neces­
sary to a complete final adjudication. We agree, 
therefore, with the reasoning of the decision cited 
and with that of Cover v. Schwartz, 2 Cir. 133 F.. 
(2d) 54.”

The Amended Complaint herein alleges that registra­
tion is a prerequisite to voting in any election in Louisiana; 
that appellee is maintaining a policy, custom and usage of 
requiring Negroes to submit to tests not required of white 
electors and of refusing to register qualified Negro electors 
while at the same time registering white electors with less 
qualifications on account of race and color (E. 6, 18); that 
during the regular registration period while appellee was 
conducting registration, appellant presented himself at the 
regular place and requested to be registered; that appel­
lant was ready, able and willing to comply with all lawful 
requirements for registration; that instead of giving appel­
lant a registration blank he asked him certain questions 
and refused to register appellant (E. 7-22); that during 
such registration period white persons were not subjected 
to any such test but were registered forthwith and that 
appellee acting pursuant to policy, custom and usage set



2 2

out above denied appellant’s application and wrongfully 
refused to register him solely on account of his race or 
color, and in doing so followed the general policy, custom 
and usage of appellee and his predecessor (R. 8, 20). It is 
clear that appellant would be entitled to a declaratory 
judgment declaring unconstitutional a statute which would 
provide that Negro applicants for registration be required 
to submit to tests not required of white electors or that 
white applicants for registration could have less qualifica­
tions than is required of Negroes. The only allegations 
necessary to support relief in such a case would be the 
statute, qualifications of appellant and an allegation that he 
was refused registration because of the statute. In the in­
stant case we do not have such a statute but have a policy, 
custom and usage of a state officer equivalent thereto.

The case of Cromwell v. Hillsborough T. P., Somerset 
County, N. J., 149 F. (2d) 617 (C. C. A. 3d, 1945) affmd. by 
U. S. Supreme Ct., Oct. Term 1945, decided Jan. 29, 1946, 
affirmed the decision of the District Court in issuing a 
declaratory judgment against the policy of state officers in 
assessing appellant’s property higher than like property as 
being in violation of the Fourteenth Amendment.

In the line of cases on the question of the equalization 
of teachers’ salaries it has been uniformly held that Negro 
teachers as a class have a right to a declaratory judgment 
declaring unconstitutional the practice, custom and usage 
of paying Negro teachers less salary than paid to white 
teachers. Alson v. School Board, supra; McDaniel v. Board 
of Public Instruction, supra; Davis v. Cook, supra.

The allegations in the complaint herein set out a claim 
for relief by way of damages and an injunction. There­
fore, the same allegations are sufficient to set forth an ac­
tual controversy within the meaning of Declaratory Judg­
ment Act.



23

V

A ction  of A p p e llee  in  R efusing  to  R eg is te r A p p el­
la n t M akes H im  L iab le  to  th e  A p p e lla n t fo r  D am ­
ag es U n d e r th e  P rovisions o f Sections 31 a n d  43 

of T itle  8 of th e  U n ited  S ta te s  Code.

Section 31 of Title 8 provides
“ Race, color, or previous condition not to affect 

right to vote.
“ All citizens of the United States who are other­

wise qualified by law to vote at any election by the 
people in any State, Territory, district, county, city, 
parish, township, school district, municipality, or 
other territorial subdivision, shall be entitled and 
allowed to vote at all such elections, without distinc­
tion of race, color, or previous condition of servitude; 
any constitution, law, custom, usage, or regulation of 
any State or Territory, or by or under its authority, 
to the contrary notwithstanding. ’ ’

and Section 43 of Title 8 provides:
“ Civil action for deprivation of rights.
“ Every person who, under color of any statute, 

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 immunities secured by the Con­
stitution and laws, shall be liable to the party injured 
in an action at law, suit in equity, or other proper 
proceeding for redress. R. S. sec. 1979.”

H. E. 1293, 41st Congress, Second Session, Avhieh was 
later amended in the Senate and which includes Section 31 
and 43 of Title 8, was originally entitled, “ A bill to enforce 
the right of citizens of the United States to vote in the 
several States of this Union who have hitherto been denied 
that right on account of race, color or previous condition



24

of servitude.” When the bill came to the Senate its title 
was amended and adopted to read, “ A bill to enforce the 
right of citizens of the United States to vote in the several 
States of this Union and for other purposes.”

The language of Section 31 is so clear as to leave no 
doubt as to its purpose. Section 43 of Title 8 has been used 
repeatedly to enforce the right of citizens to vote. See 
Myers v. Anderson, supra; Lane v. Wilson, supra.

In the recent decision of Smith v. Allwright, a suit for 
damages under these sections was sustained by the United 
States Supreme Court. The facts in the instant case are 
basically similar to those in the Smith v. Allwright, supra.

Since registration is a prerequisite to voting, the refusal 
of appellee to register appellant and those similarly situ­
ated solely on account of race and color gives rise to an 
action for damages and an injunction under Section 31 and 
43 of Title 8.

Conclusion

This litigation presents questions of grave importance 
not only to appellant but to all those on whose behalf this 
suit has been instituted. Over many years the courts have 
been successful in giving life and substance to those con­
stitutional provisions expressly designed to secure for 
Negro citizens of the United States a political voice in our 
democratic processes. Now there is before this Court a 
discriminatory practice which must be struck down if these 
provisions are not to be miscarried. It is respectfully sub­
mitted, therefore, that the decision of the lower Court be 
reversed and an order be entered more consistent with the 
line of decision which has prevailed in the development of



25

American jurisprudence that restrictions of race or color 
cannot live in the face of our constitutional guarantees.

Respectfully submitted,
A. P. T ureattd,
J oseph  T hornton ,

612 Iberville Street,
New Orleans, La.

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

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

Attorneys for Appellant.
R obert L. Carter,

New York, N. Y.
Of Counsel.

[Appendices Follow.]





27

A P P E N D IX  A

C onstitu tion  of th e  U n ited  S ta te s—-1787

ARTICLE I
Section 2.—The House of Representatives shall be com­

posed of Members chosen every second Year by the People 
of the several States, and the Electors in each State shall 
have the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature.

A m en d m ent  14

Section 1.—All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny 
to any person within its jurisdiction the equal protection 
of the laws.

A m endm ent  15

Section 1.—The right of citizens of the United States to 
vote shall not be denied or abridged by the United States 
or by any State on account of race, color, or previous condi­
tion of servitude.

Section 2.—The Congress shall have power to enforce 
this article by appropriate legislation.

A m endm ent  17

The Senate of the United States shall be composed of 
two Senators from each State, elected by the people thereof, 
for six years; and each Senator shall have one vote. The



2 8

electors in each State shall have the qualifications requisite 
for electors of the most numerous branch of the State legis­
latures.

U n ited  S ta te s  C ode

Title 8—Section 31—Race, color, or previous condition 
not to affect right to vote.

All citizens of the United States who are otherwise quali­
fied by law to vote at any election by the people in any 
State, Territory, district, county, city, parish, township, 
school district, municipality, or other territorial sub-divi­
sion, shall be entitled and allowed to vote at all such elec­
tions, without distinction of race, color, or previous condi­
tion of servitude; any constitution, law, custom, usage, or 
regulation of any State or Territory, or by or under its au­
thority, to the contrary notwithstanding. R. S. Sec. 2004.

Section 43—Civil action for deprivation of rights.
Every person who, Under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory, sub­
jects, or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction thereof to 
the deprivation of any rights, privileges, or immunities se­
cured by the Constitution and laws, shall be liable to the 
party injured in an action at law, suit in equity or other 
proper proceeding for redress. R. S. Sec. 1979.

Title 28—Section-41—Subdivision 11-—Suits for injuries 
on account of acts done under laws of United States.— 
Eleventh.

Of all suits brought by any person to recover damages 
for any injury to his person or property on account of any 
act done by him, under any law of the United States, for 
the protection or collection of any of the revenues thereof,



29

or to enforce the right of citizens of the United States to 
vote in the several States. R. S. Sec. 629.

Subdivision 14—Suits to redress deprivation of civil 
rights.—Fourteenth.

Of all suits at law or in equity authorized by law to be 
brought by any person to redress the deprivation, under 
color of any law, statute, ordinance, regulation, custom, or 
usage, of any State, of any right, privilege, or immunity, 
secured 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 per­
sons within the jurisdiction of the United States. R. S. Sec. 
563.



30

A PPE N D IX  B 

Constitution o f Louisiana

ARTICLE VIII 
Section 1.—Qualifications of electors

After January 1, 1922, the right to vote in Louisiana 
shall not exist except under the provisions of this Consti­
tution.

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 following* qualifications, shall be 
an elector, and shall be entitled to vote at any election in 
the State by the people:

(a) Residence—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 elections 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 an­
other 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, whether the parish 
be in the same district or not, until he shall have acquired 
the right to vote for such officers in the parish to wffiich he 
has removed.

(b) Registration—He shall be, at the time he offers to 
vote, legally enrolled as a registered voter on his own per­
sonal application, in accordance with the provisions of this 
Constitution, and the laws enacted thereunder.



31

(c) Character and literacy—-He shall be of good charac­
ter and shall understand the duties and obligations of 
citizenship 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, administered by the registration officer or his 
deputy, written application therefor, in the English lan­
guage, or his mother tongue, which application shall con­
tain 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 regis­
tration officer or his deputy, without assistance or sugges­
tion from any person or any memorandum whatever, other 
than the form of application hereinafter set forth; pro­
vided, however, 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 dis­
ability, the same shall be written at his dictation by the 
registration officer or his deputy, upon his oath of such 
disability.

Until and unless otherwise provided by law, the appli­
cation for registration above provided for, shall be a copy 
of the following form, with the proper names, dates and 
numbers substituted for the blanks appearing therein, to 
wit:

I am a citizen of the State of Louisiana. My name is
Mr___________ , Mrs___________, Miss_____________
I was born in.the State (or country) of__ ____________ ,
Parish, (or county) of_____ ____ ___ , on the _______day
o f ____________ , in the year________ I am now______
years,_______ months an d ------------ days of age. I  have



32

resided in this State since------------ in this parish since
------------, and in precinct No______ , in Ward No_____ ,
since---------------- , and I am not disfranchised by any pro­
vision of the Constitution of this State.

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

(d) Understanding of Constitution—If he is not able to 
read or write, then he shall be entitled to register if he shall 
be a person of good character and reputation, attached 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 reasonable 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 
understand the duties and obligations of citizenship under 
a republican form of government.

(e) Identity to be established—He must in all cases be 
able to establish that he is the identical person whom he 
represents himself to be when applying for registration, 
and when presenting himself at the polls for the purpose 
of voting in any election or primary election.

Section 5.—Remedy for denial of registration.
Any person possessing the qualifications for voting pre­

scribed by this Constitution, who may be denied registra­
tion, shall have the right to apply for relief to the district 
court having jurisdiction of civil causes for the parish in 
which he offers to register. Said court shall then try the 
cause, giving it preference over all other cases, before a jury 
of twelve, nine of whom must concur to render a verdict. 
This verdict shall be a final determination of the cause. The 
trial court may, however, grant one new trial by jury. In



33

no cases shall any appeal lie or any other court exercise the 
right of review # * * .

Section 6.—Disqualifications.

The following persons shall not be permitted to register 
vote, or hold office or appointment of honor, trust, or profit 
in this State, to w it: Those who have been convicted of any 
crime which may be punishable by imprisonment in the peni­
tentiary, and not afterward pardoned with express restora­
tion of franchise; those who are inmates of any charitable 
institution, except the Soldiers’ Home; those actually con­
fined in any public prison; all interdicted persons, and all 
persons notoriously insane or idiotic, whether interdicted 
or not.

Section 17.-—State-wide registration.

The Legislature shall provide for the registration of 
voters throughout the State.

Section 18.—Registrars of voters.

There shall be a registrar of voters for the parish of 
Orleans, who shall be appointed by the Governor, and one 
for each parish in the State, who shall be appointed by the 
police jury or other governing authority of such parish.

The Governor shall issue a commission to each registrar 
who shall thereupon make such bond, subscribe to such 
oath, and receive such compensation as the legislature may 
prescribe; provided, that the State and the parish shall 
each pay one-half of such compensation.

The Governor, Lieutenant-Governor, and speaker of the 
House of Representatives shall compose the board of regis­
tration and any two members of same shall have power to 
remove, at will, any registrar in this State.



34

The first registrar in each parish shall be appointed on 
or before December 15, 1921, and a new and complete regis­
tration shall be had under this Constitution in every parish 
beginning January 2, 1922.

Should a registrar be not appointed by December 15, 
1921, or any subsequent vacancy be not filled, within thirty 
days after its occurrence, by the above constituted au­
thority, a majority of the board of registration shall appoint 
and the Governor shall commission a registrar of voters in 
each parish which has none.

No registrar of voters shall be elected or appointed to 
any other office within twelve months after vacating that of 
registrar.

No other officer or person shall exercise any of the 
powers or duties of the registrar of voters after December 
15, 1921; provided, this shall not be construed to forbid the 
Legislature to authorize the appointment, by the registrar, 
of deputy registrars.

Louisiana G eneral Statutes (D art 1939)

A rticle 2615.10. Qualifications for registration.
Every citizen of the United States and of this state, 

native born or naturalized, not less than twenty-one years 
of age and possessing the following qualifications, and who 
shall have complied with the provisions of this act, shall be 
eligible for registration as a voter.

1. He shall have been an actual bona fide resident of 
the state for two years, of the parish for one year, and of 
the municipality in municipal elections four months, and of 
the precinct in which he offers to register as a voter, three 
months next preceding any election.

2. He shall be of good character, and shall understand 
the duties and obligations of citizenship under a republican



35

form of government. Unless the applicant for registration 
qualifies under the provisions section 6 (2615.15) of this 
article, he shall be able to read and write, and shall demon­
strate his ability to do so when he applies for registration, 
by making, under oath administered by the registrar or his 
deputy, written application thereof in the English language, 
or in his mother tongue, which application shall contain the 
essential facts necessary to show that he is entitled to 
register, and shall be entirely written, dated and signed by 
him, except that he may date, fill out and sign the blank 
application for registration herein provided for, in the 
presence of the registrar or his deputy without assistance 
or suggestion from any person or any memorandum what­
ever, other than the form of application hereinafter set 
forth; provided, however, that if the applicant is 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.

If the applicant is unable to write his application by 
reason of physical disability, the same may be written at 
his dictation by the registrar or his deputy, upon the appli­
cant taking an oath before such officer of his disability, or 
of his inability to write same in the English language, or 
aforesaid. In case the applicant is able to sign his name, 
he shall be required so to do; if not, then, he shall sign 
same with his mark, authenticated by the registrar or 
deputy registrar, who shall then read such application to 
him, if necessary through an interpreter, and the applicant, 
whether signing individually or by a mark, shall make affi­
davit to the truth of the fact therein stated.

A rticle 2615.11. Application—Form of.
The application for registration above provided for 

shall be a copy of the following form, with the proper names,



36

dates, and numbers substituted for the blanks appearing 
therein, to w it:

“ I am a citizen of the United States and of the
State of Louisiana. My name is M r.____.____ , Mrs.
_________, Miss_______I was born in the state
(or country) of _________  Parish (or county) of
______ _ on th e___ day o f_________ in the year
_____  I am now _____  years, ___  months and
___ days of age. I  have resided in the state since
_____ , in this Parish since _____ , and in Precinct
No. ________ , in Ward No. _____  of this Parish
continuously since _____  I am not disfranchised
by any provisions of the Constitution of this state. 
The name of the householder at my present address
i s ______________  My occupation i s _____ ._____
My color i s _________  My sex i s --------------  I am
not now registered as a voter in any other Ward or
Precinct of this state, except ...------------ My last
registration was in W ard_______Precinct----------- ,
Parish __________ I am now affiliated with the
___________ party.

Signature

Sworn to and subscribed before me:

Deputy Registrar. ’ ’

Said blanks shall also be provided with an additional 
space in a form convenient for the notation thereon 
o f ________ :

1, Change of address of said applicant within the 
parish, as hereinafter provided in this act; and

2. Changes of name of the applicant as hereinafter pro­
vided; and

3. Remarks.



37

A rticle 2615.14. Applicants—Understanding of state and 
federal constitntions.

Applicants for registration shall also be able to read 
any clause in the constitution of this state or of the consti­
tution of the United States, and give a reasonable interpre­
tation thereof.

A rticle 2615.15. Applicants unable to read or write.
If the registrant is not able to read or write, then he 

shall be entitled to register if he shall be a person of good 
character and reputation, attached to the principles of the 
constitution of the United States and of the state of Louisi­
ana, and shall be able to undersand and give a reasonable 
interpretation of any section of either constitution when 
read to him by the registrar or his deputy, and he must be 
well disposed to the good order and happiness of the state 
of Louisiana and of the United States and must understand 
the duties and obligations of citizenship under a republi­
can form of government. In such case, the registrar or his 
deputy shall fill out at the dictation of the applicant, the 
facts set forth in the blank application, which, when com­
pleted, shall then be read to him, and the applicant shall 
sign his name, and if able so to do, otherwise shall sign his 
mark, attested by the registrar or his deputy and shall make 
affidavit to the truth of the facts therein set forth.

A rticle 2615.16. Proof of id en tity .

The applicant must, in all cases, be able to establish that 
he is the identical person whom he represents himself to 
be when applying for registration, and if the registrar shall 
have good reason to believe that he is not tile person whom 
he represents himself to be, he may require the applicant 
to produce two credible registered voters of his precinct to 
make oath to that effect.



38

A rticle 2615.19. Appearance in person required.—Place.
Every applicant for registration must appear person­

ally before the registrar or his deputy, at a designated place 
of registration, and comply with the provisions of this act, 
and it shall be unlawful for any applicant to be otherwise 
registered by the registrar, or to be allowed to register at 
any other place than herein permitted.

A rticle 2615.21. Persons ineligible for registration.
The following persons shall not be permitted to register, 

to w it: Those who have been convicted of any crime which 
may be punishable by imprisonment in the penitentiary, 
and not afterwards pardoned with the express restoration 
of the franchise; those who are inmates of any charitable 
institutions except the soldiers’ home; those actually con­
fined to any public prison; all interdicted persons, and all 
persons notoriously insane or idiotic, whether interdicted 
or not.

A PPE N D IX  C 

26 O klahom a Statutes

S ection 74—Registration of electors—Time for cer­
tificate to certain voters—Review of 
refusal of registration—School district 
elections excepted.

It shall be the duty of the precinct registrar to register 
each qualified elector of his election precinct who makes 
application between the thirtieth day of April 1916, and the 
eleventh day of May 1916, and such person applying shall 
at the time he applies to register be a qualified elector in 
such precinct and he shall comply with the provisions of 
this act, and it shall be the duty - of every qualified elector 
to register within such time; provided, if any elector



39

should be absent from the county of his residence during 
such period of time, or is prevented by sickness or unavoid­
able misfortune from registering with the precinct regis­
trar within such time, he may register with such precinct 
registrar at any time after the tenth day of May, 1916, up 
to and including the thirtieth day of June, 1916, but the 
precinct registrar shall register no person under this pro­
vision unless he be satisfied that such person was absent 
from the county or was prevented from registering by sick­
ness or unavoidable misfortune, as hereinbefore provided, 
and provided that it shall be the mandatory duty of every 
precinct registrar to issue registration certificates to every 
qualified elector who voted at the general election held in 
this state on the first Tuesday after the first Monday in 
November, 1914, without the application of said elector for 
registration, and, to deliver such certificate to such elector 
if he is still a qualified elector in such precinct and the 
failure to so register such elector who voted in such elec­
tion held in November 1914, shall not preclude or prevent 
such elector from voting in any election in this state; and 
provided further, that wherever any elector is refused 
registration by any registration officer such action may be 
reviewed by the district court of the county by the aggrieved 
elector by his filing within ten days a petition with the 
Clerk of said court, whereupon summons shall be issued 
to said registrar requiring him to answer within ten days, 
and the district court shall be a (give an) expeditious hear­
ing and from his judgment an appeal will lie at the instance 
of either party to the Supreme Court of the State as in civil 
cases; and provided further, that the provisions of this act 
shall not apply to any school district elections. Provided 
further, that each county election board in this state shall 
furnish to each precinct election board in the respective 
counties a list of the voters who voted at the election in 
November, 1914, and such list shall be conclusive evidence 
of the right of such person to vote.



L awyers P ress, I nc., 165 W illiam St., N. Y. C .; ’Phone: BEekman 3-2300