Turner v. Fouche Jurisdictional Statement

    I n  t h e

Olnttrt xxt tijj? Irnt̂ Jn
October Term, 1968

N o...................

Calvin Turner, et al.,

- V -

W . W . F ouche, et al.,

Appellants,

Appellees.

ON APPEAL FROM T H E  U N IT E D  STATES DISTRICT COURT 

FOR T H E  SO UTH ERN DISTRICT OF GEORGIA

JURISDICTIONAL STATEMENT

J ack Greenberg 
Michael Meltsner 

10 Columbus Circle 
New York, New York

H oward Moore, J r.
P eter R indskopf

8591/2 Hunter Street, N. W. 
Atlanta, Georgia

Attorneys for Appellants



I N D E X

PAGE

Opinion Below ....................................................................  1

Jurisdiction ...............    1

Constitutional and Statutory Provisions Involved....... 2

Questions Presented .......         3

Statement ............................................................................ 3

The Questions Presented Are Substantial...................  11

I. Ga. Code Ann., Tit. 59 §§101, 106 Are Uncon­
stitutionally Vague and Discriminate Against 
Negroes by Permitting Their Arbitrary Ex­
clusion Prom Service as Jury Commissioners 
and Jurors in Violation of the Fourteenth 
Amendment to the Constitution of the United 
States ..................................-.................................  11

II. Georgia Constitutional and Statutory Provi­
sions for Selection of School Board Members 
Operate in Taliaferro County to Exclude Ne­
groes Prom Participation in the Selection of 
Board Members in Violation of the Thirteenth, 
Fourteenth, and Fifteenth Amendments to the 
Constitution of the United States ..................  18



11
PAGE

III. The State’s Restriction of Membership on 
County Boards of Education to Freeholders 
Violates the Equal Protection Clause of the 
Fourteenth Amendment ...................................— 24

Conclusion ....................................................- .............................. 28

A ppendix :

Opinion and Order .....................................................  29

Final Judgment .............. .......................... ............... 38

Constitutional and Statutory Provisions Involved 40

Table of Cases

Abington School District v. Schempp, 374 U. S. 203
(1963) .............................................................................. 27

Anderson v. Martin, 375 U. S. 399 (1964) ..................  25

Baggett V. Bullitt, 377 U. S. 360 (1964) ......................  15
Baxstrom v. Her old, 383 U. S. 107 (1966) ..................  24
Board of Supervisors v. Dudley, 252 F. 2d 372 (5th

Cir. 1958) ........................................................................  16
Bond V. Floyd, 385 U. S. 116 (1966) .............................. 25
Bostick V. South Carolina, 386 U. S. 479 (1967) ....... 13
Brown v. Allen, 344 U. S. 433 (1953) ..........................  16
Brown v. Board of Education, 347 U. S. 483 (1954) .... 23 
Brunson v. North Carolina, 333 U. S. 851 (1948) ....... 17

Cassell V. Texas, 339 U. S. 282 (1950) ......................  17
Cline V. Frink Dairy Co., 274 U. S. 445 (1927) ....... 15
Commercial Pictures Corp. v. Regents of University of 

New York reported with Superior Films, Inc. v. De­
partment of Education, 346 U. S. 587 (1954) ........... 15



Ill

PAGE

Commissioners of Chatham County v. Savannah Elec­
tric and Power Co., 112 S. E. 2d 665, 215 Ga. 636 
(1960) .............................................................................. 27

Davis V. Schnell, 81 F. Siipp. 872 (S. D. Ala.) aff’d 
per curiam, 366 U. S. 933 (1949) .............................. 15

Edwards v. South Carolina, 373 U. S. 229 (1963) ....... 15

Giaccio v. Pennsylvania, 383 TJ. S. 339 (1966) ................ 15
Gideon v. Wainwright, 372 U. S. 335 (1963) ...............  25
Gomillion v. Lightfoot, 364 U. S. 339 (1960) ...........20, 22
Griffin v. Illinois, 351 U. S. 12 (1956) ......................  25
Gulf, Colorado and Santa Fe Ry. v. Ellis, 165 U. S.

150 (1897) ......................................................................  24

Harper v. Virginia Board of Elections, 383 U. S. 663
(1966) .......................... -............................... -.... 22, 24, 25, 26

Herndon v. Lowry, 301 U. S. 242 (1937) .................. . 15

Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 H. S.
713 (1962) ......................................................................  2

Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952) 15

Labat v. Bennett, 365 P. 2d 698 (5th Cir. en banc
1966) ............................................................................. 12,16

Landes v. Town of Hempstead, 231 N. E. 2d 120, 20
N. T. 2d 417 (1967) .....................................................26, 27

Lane v. Wilson, 307 U. S. 268 (1939) ..........................  22
Louisiana v. United States, 380 U. S. 145 (1965) .—15,16,

17, 22



IV

PAGE

MacDougall v. Green, 335 U. S. 281 (1948) ............... 19
Mitchell V . Johnson, 250 F. Supp. 117 (M. D. Ala. 1966) 11

Neal V. Delaware, 103 U. S. 370 (1881) ......................  17
Nixon V. Condon, 286 U. S. 73 (1932) ..........................  20
Nixon V. Herndon, 273 U. S. 536 (1927) ......................  20

Pierce v. Ossining,----- P. Supp.------ No. 68 Civ. 4150
(S. D. N. Y. Decided Nov. 1, 1968) ..........................  26

Rabinowitz v. United States, 366 F. 2d 34 (5th Cir.
en banc 1966) ................................................................  13

Reynolds v. Sims, 377 U. S. 533 (1964) ................. „...19, 21

Sailors v. Board of Education of Kent County, 387
U. S. 105 (1967) .......................... .............................. 19,21

Shelley v. Kraemer, 334 U. S. 1 (1948) ..........................  20
Sims V. Baggett, 247 F. Supp. 96 (M. D. Ala. 1965) 21
Skinner v. Oklahoma, 316 U. S. 535 (1942) ..................  24
Slaughter House Cases, 83 U. S. 36 (1873) ..................  22
Smith V. Allwright, 321 U. S. 649 (1944) ..................  22
Smith V. Bennett, 365 U. S. 708 (1961) - ....................  25
Smith V. Paris, 257 F. Supp. 901 (M. D. Ala. N. D.

1966) affirmed 386 F. 2d 979 ............... ...................... 9
Smith V. Texas, 311 U. S. 128 (1940) ..........................13,16
South Carolina v. Katzenbach, 383 U. S. 301 (1966) 15
Staub V. City of Baxley, 355 U. S. 313 (1958) ..............  15

Terry v. Adams, 345 U. S. 461 (1953) ..................... 20,23
Turner v. Goolsby, 255 F. Supp. 724 (S. D. Ga. 1965) .... 4



PAGE

United States v. Atkins, 323 F. 2d 733 (5th Clr. 1963) 15
United States v. L. Cohen Grocery Co., 255 U. S. 81

(1921) .............................................................................. 15
United States v. Mississippi, 380 U. S. 128 (1965) —. 16

Whitus V. Georgia, 385 U. S. 545 (1967) ................ -13,14
Winters v. New York, 333 U. S. 507 (1948) ..................  15

Table of S tatutes

Alabama Code Tit. 30 §21 (1959) .................................. 12
Arizona Rev. Stat. Ann. §21-201 (1956) ......................  12
Arkansas Stat. Ann. §39-101 (1962) - ............................ 12
Arkansas Stat. Ann. §39-206 (1962) .............................. 12
Arkansas Stat. Ann. §39-208 (1962) .............................. 12

Connecticut Gen. Stat. Ann. §51-217 (Supp. 1965) ....... 12

Florida stat. Ann. Tit. 5 §40.01 (1961) .......................... 12

Ga. Const., Art. VIII, §V, 1U ..................................... 2, 7,8
Ga. Code Ann. Tit. 2 §6801 ............... ....... .......... 2, 7, 8, 9, 24
Ga. Code Ann. Tit. 2 §7501 .............................................  27
Ga. Code Ann. Tit. 32 §902 ..................................... —2, 8, 24
Ga. Code Ann. Tit. 32 §902.1 ...........     2
Ga. Code Ann. Tit. 32 §903 ............................................. 2
Ga. Code Ann. Tit. 32 §905 -  ............. —-...................  2
Ga. Code Ann. Tit. 32 §1116...........................................  27
Ga. Code Ann. Tit. 32 §1118...........................................  26
Ga. Code Ann. Tit. 32 §1127 ...............  26
Ga. Code Ann. Tit. 59 §101 ................................... 2, 7,11,14
Ga. Code Ann. Tit. 59 §106.................................. 2, 7,11,14



V I

PAGE

Illinois Ann. Stat. Tit. 78 §2 (Smith-Hnrd Snpp. 1966) 12
Iowa Code Ann. §601.1 (1950) ...................................... 12

Kansas Stat. Ann. §43-102 (1964) .................................. 12

Louisiana Eev. Stat. Ann. §13-3041 (1950) ..................  12

Maine Rev. Stat. Ann. Tit. 14 §1254 (Supp. 1965) ....... 12
Maryland Ann. Code Art. 51 §9 (Supp. 1966) ........... 13
Michigan Stat. Ann. §27A.1202 (Supp. 1965) ..............  13
Missouri Ann. Stat. §494.010 (Supp. 1966) ..................  13

Nebraska Rev. Stat. §25-1601 (1964) ..........................  13
New York Judic. Law §504(5) (Supp. 1966) ............... 13
North Carolina Gen. Stat. §9-1 (1953) ..........................  13

Oklahoma Stat. Ann. Tit. 38 §28 (Supp. 1966) ........... 13

South Carolina Code Ann. §38-52 (1962) ......................  13

Texas Rev. Civ. Stat. Ann. §2133 (1964) ......................  13

28 II. S. C. §1253 ........................................................... 2
28 U. S. C. §1331................................     1
28 U. S. C. §1343(3) (4) .................   1
28 U. S. C. §2201 ..........................................................  1
28 II. S. C. §2202 ................      1
28 U. S. C. §2281 ................................................................  2, 7
28 U. S. C. §2284 ............................................................ . 2, 7
42 U. S. C. §1981.   1
42 U. S. C. §1983 ................................    1
42 U. S. C. §1988 ........................................................... 1
42 U. S. C. §1994 ....................................   1
42 U. S. C. §2000d.......................................................  1
42 U. S. C. §2000e......................................................... 1



Vll

PAGE

West Virginia Code Ann. §52-1-4 (1966) ......................  13
Wisconsin Stat. Ann. §255.01(5) (1957) ........................  13

Other A uthority

Kuhn, “Jury  Discrimination: The Next Phase,” 41 
U. S. C. Law Rev. 235 (1968) .....................................  12



I n ' t h e

( H m x t  of
October Term, 1968

No ...................

Calvin Turner, et al.,
Appellants,

W . W . F ouche, et al.,
Appellees.

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

FOR TH E  SOUTHERN DISTRICT OF GEORGIA

JURISDICTIONAL STATEMENT

O pinion Below

The opinion of the court belo'w is as yet unreported and 
is set forth in the appendix, p. 29, infra.

Jurisdiction

This is an action for injunctive and declaratory relief 
in Avhich the jurisdiction of the district court was invoked 
under 28 U. S. C. §§1331(a), 1343(3)(4), 2201, 2202; 42 
U. S. C. §§1981, 1983, 1988, 1994, 2000d and 2000e; and 
the Fifth, Ninth, Thirteenth, Fourteenth and Fifteenth 
Amendments to the Constitution of the United States. The 
complaint sought, inter alia, to enjoin the continued en­



forcement and operation of Georgia’s constitutional and 
statutory scheme for the selection of jurors and members 
of county boards of education. A statutory three-judge 
court was convened pursuant to 28 U. S. C. §§2281, 2284.

An opinion and order finding “no merit in the three- 
judge district court questions presented” {infra, p. 36) 
was entered August 5, 1968 and a final judgment and decree 
entered on September 19, 1968 {infra, p. 38). Timely no­
tice of appeal to this Court was filed in the court below 
on October 14, 1968. On December 2, 1968, Mr. Justice 
Black extended the time for filing a Jurisdictional State­
ment to and including February 8, 1969.

Jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1253 to review the judgment of the district court. 
That court was properly convened pursuant to 28 U. S. C. 
§2281 because the action seeks to restrain enforcement of 
state statutes and constitutional provisions on the ground 
that they violate the Federal Constitution. See e.g.. Idle- 
wild Bon Voyage Liquor Corporation v. Epstein, 370 U. S. 
713 (1962).

Constitutional and Statutory Provisions Involved

The Georgia constitutional and statutory provisions in­
volved in this litigation are the following: Article VIII, 
Section V, paragraph I, of the Georgia Constitution of 
1945 (Title 2, Section 6801, Georgia Code Annotated); Sec­
tions 32-902, 32-902.1, 32-903, 32-905, 59-101, and 59-106 of 
Georgia Code Annotated. These enactments are set out 
in full in the appendix to this statement at pp. 40-45, infra.

This action also involves the Thirteenth, Fourteenth and 
Fifteenth Amendments to the Constitution of the United 
States.



Q uestions Presented

1. Whether Georgia’s restriction of service on juries to 
the “upright and intelligent” and on jury commissions to 
the “discreet” violates the Fourteenth Amendment where 
both provisions provide an “opportunity to discriminate” 
racially which has been “resorted to”?

2. Whether the Georgia system of selection of school 
board members violates the Thirteenth, Fourteenth and 
Fifteenth Amendments where Negroes constitute over sixty 
percent of the population, fifty percent of the electorate, 
and all of those attending public schools, but only a dis­
proportionate minority of those who appoint board 
members ?

3. Whether Georgia’s restriction of service on juries to 
freeholders violates the Fourteenth Amendment?

Statement
A. In tro d u c tio n

Despite the fact that approximately 62% of the residents 
and 50% of the registered voters in Taliaferro County, 
Georgia are Negro {infra, pp. 31, 32)^ (11-132)^ and all of

 ̂Citations to the transcript of the first hearing in the district 
court are as follows: (I- ). Citations to the second hearing are
shown as: (II- ).

 ̂According to Census of Population, 1960, Table 27, pp. 12-130, 
and Table 28, pp. 12-148, the population of the county is :

White ______________ 1,273
Negro _______________  2,096

White (over 21) ______  877
Negro (over 21) ____  979

White (over 18) _____ 917
Negro (over 18) ____  1,073



the teachers and children who attend public schools of the 
country are Negro (Admissions 8, 11), the five-man county 
school board never had a Negro member until one was 
appointed as a consequence of this litigation (1-15, 37; II- 
6, 7; Admissions 4, 5, 6). (School board members are 
selected by the county grand jury by a process described 
infra, p. 7.) The white children of the county fled the 
system several years ago to attend private schools or pub­
lic schools in other counties as part of “an effort to avoid 
desegregating the school system of Taliaferro County.” 
Turner v. Goolsby, 255 F. Supp. 724, 731 (S. D. Ga. 1965). 
The Turner opinion describes in detail the complicity of 
the board of education and school superintendent in “the 
expenditure of . . . public funds for transporting the white 
children to adjoining counties” (255 F. Supp. at 729) as 
well as their part in an alleged “conspiracy . . .  to have 
secretly and covertly arranged for all the white children to 
leave the county for school in other counties . . . ” (255 
F. Supp. at 727-28). The district court in Turner attempted 
to halt these practices by taking control from the board 
and placing the system in receivership. The receivership, 
however, was terminated several months later without any 
of the white children returning, and they have still not 
returned to the system (Admission 8). None of the defen­
dant board members tiiemselves had children attending the 
public schools (Admission 7); both members with chil­
dren sent them to schools in another county (1-83).

Negro parents believed that they were unable to alter 
continued operation of a segregated school system, and that 
the white school board was, at worst, hostile and, at best, 
unresponsive to the needs and desires of the students 
actually attending the schools (1-155). The experience of



5

Negro parents that the school board would not even listen 
to their opinions and grievances strengthened that belief 
(1-127). Kepeated attempts by appellant Calvin Turner 
and members of the Voters League, a civic group, to ap­
pear at school board meetings were unsuccessful. The time 
of scheduled meetings could not be determined despite at­
tempts to obtain information from the board chairman 
(1-125-6, 143). When reached by phone his attitude was 
brusque and unhelpful (1-151, 152). A registered letter 
sent to him went unanswered (1-125-6). A change in the 
time of regular board meetings went unpublicized, contrary 
to law (11-104).

One parent, Mrs. Mary Allen, was invited to visit her 
child’s classroom by the Negro principal. After the white 
superintendent observed Mrs. Allen in class, the classroom 
teacher was told; “Miss Hadden, discontinue this class 
until the parents (sic) leave” (1-168). Mrs. Allen subse­
quently asked to be allowed to organize a parents-teachers 
association in order to “have some kind of communication 
with the teacher” (1-173). The principal of the high school 
informed her that this could not be done because the super­
intendent had refused permission (1-173). When a group 
of parents attempted to appeal that decision, and present 
other grievances to the board, the board abruptly adjourned 
its meeting without responding to any of the complaints. 
The course of the meeting was described at trial (1-177):

“Judge Bell: How long did you stay in there?
The W itness: About ten minutes.
Judge Bell: And then they moved that the meeting 

be adjourned?
The Witness: That’s right, and put the heater out. 

They had the heater on and a gentleman put the heater



out and we walked out. He started putting the lights 
out too and we walked out and then they closed the 
door.

Judge Bell: Did they give you an answer at all as 
to your complaints!

The Witness: No answer.
Judge Bell: No answer?
The Witness: No, sir.
Judge Bell: Have you had one since then?
The Witness: No, sir.”

Mrs. Allen stated her opinion of the school system as 
follows:

“You can’t even talk with the teacher, and can’t go and 
sit in the classroom and can’t talk to the board, can’t 
talk to anybody, nothing about your problems” (1-178).

Shortly after her experience with the school board she 
moved to another county for the benefit of her child. Her 
purpose in moving, she said, was “to get communication” 
(1-178).

B. In itia tio n  o f  L itigation

On November 15, 1967, appellants, a registered Negro 
voter residing in Taliaferro County, his daughter, a stu­
dent in the public schools of the county, and a Negro resi­
dent of the county who is not a freeholder brought this 
action against members of the board of education, jury 
commission and grand jury of the county. Appellants al­
leged that they, and others similarly situated, were denied 
rights guaranteed by the Thirteenth, Fourteenth, and F if­
teenth Amendments to the Constitution by the operation



of statutory and constitutional provisions of the State of 
Georgia which authorize an intertwined and multi-layered 
scheme for the selection of school board members and 
jurors. Appellants contended, inter alia, that: (1) they 
had been denied an opportunity to serve as grand and trav­
erse jurors on account of race (complaint para. 11(d)); 
(2) because of the power vested in the grand jury to select 
school board members, they had been denied on account 
of race an opportunity to participate in the process of 
selecting the officials who administer the schools of the 
county (complaint, para. 11(a), (b)); and (3) they had 
been denied on account of their poverty, and the require­
ment that school board members be freeholders, the oppor­
tunity to actually serve as board members (complaint 
11(b)). Because appellants sought injunctive relief re­
straining the enforcement of state statutes and constitu­
tional provisions, a three judge court was empanelled 
pursuant to 28 U. S. C. §§2281, 2284.

C. T h e  Selection  o f  Jurors and B oard  M em bers

The challenged selection process for the grand jury and 
school board members begins when a judge of the Superior 
Court, elected by the voters of a six county circuit, appoints 
six jury commissioners from among the “discreet” mem­
bers of the community (11-58; Ga. Code Ann., Tit. 59 
§101). These commissioners, who for at least the last 
50 years have always been white (Admissions 1, 2 and 3; 
1-35, 36), then compile a list from among registered voters 
who are “upright and intelligent citizens of the county” to 
serve as grand and traverse jurors (Ga. Code Ann. Tit. 59 
§106; Art. VIII, §V, HI, Ga. Constitution; Ga. Code Ann.



8

Tit. 2 §6801). The grand jury drawn from this list selects 
“from the citizens of their . . . count [y], five freeholders, 
who shall constitute the county hoard of education” (Art. 
VII, §V, TII, G-a. Constitution; Ga. Code Ann., Tit. 32 §902). 
The operation of this system is statewide, except in those 
counties altering it “by local or special law conditioned 
upon approval by a majority of the qualified voters of the 
county voting in a referendum thereon” (Ga. Code Ann., 
Tit. 2 §6801).

At the first of two hearings in the district court, evidence 
was introduced showing that on the jury list most recently 
composed, 56 out of a total of 328 eligible traverse jurors 
(or 17%) were Negroes (1-118; Plaintiffs’ Exhibit I) and 
11 out of 130 on the grand jury list (or 8.5%) were 
Negroes. The district court concluded that systematic ex­
clusion of Negroes was taking place and condemned the 
practice:

“We all know what systematic exclusion is, and when 
there is as many registered Negro voters in a county 
as whites and you have 130 to 11 on the grand jury, 
why that’s systematic exclusion, and that will have to 
be corrected” (1-200).

The court adjourned the hearing after informing defen­
dants of the court’s power to enjoin racial discrimination 
if a remedy were not devised (1-200, 203).

At the second hearing defendants submitted a report 
describing a recomposition of the jury lists without first 
notifying counsel for appellants of its contents (II-9). 113 
of the 304  ̂persons said to be on the new traverse jury list

® Disqualifications left 608 names on the list. Since fewer were 
needed, the jury commission alphabetized the remaining names and 
discarded every other one reducing the final list to 304 persons.



were Negroes (37%) and 44 of 121 persons on the grand 
jury list were Negroes (36%). 32 persons were initially 
selected for the grand jury, of whom 9 (or 28%) were 
Negro. Of the 23 persons actually selected to serve on the 
grand jury, after 9 persons were excused, 6 (or 26%) were 
Negro (II-6). In composing these jury lists, defendants 
claimed they started with a roll of all the registered voters 
in the county, eliminated from consideration several classes 
of persons found to he ineligible, and finally arrived at a 
list of persons they deemed fully eligible to serve as jurors. 
178 persons excluded were as not conforming to the statu- 
torjr requirement that jurors he “upright and intelligent.” 
171, or 96%, of those excluded by the commissioners were 
Negro. The precise criteria used to define uprightness and 
intelligence if any, were undetermined* (11-27-32).

At the first hearing Judge Bell remarked that the ab­
sence of Negroes on the board of education “simply will 
not do” and stated pointedly that it would be wise if the 
school board filled its vacancies with “two outstanding 
Negroes . . .  if you don’t want to do that we will know that 
on the 23rd [of February]” (1-201). Two vacancies existed 
on the school board at the time of the hearing. At the new 
grand jury’s first meeting it confirmed the school board’s 
appointment of one Negro and one white to fill the vacan­
cies.®

* For example, the Jury Commission Chairman testified that he 
did not know whether any persons were found to lack a sufficiently 
upright character because of having been convicted of a traffic vio­
lation (11-32).

® The grand jury is authorized to appoint members to the board 
except in the case of vacancies occurring for reasons other than 
expiration of a term. Such appointments are to be made by the 
remaining school board members subject to ratification by the 
grand jury at its next meeting (Ga. Code Ann., Tit. 2 §6801). The 
vacancies existing at the time of trial were of the latter type.



10

The revision of the jury list and the tilling of the school 
board vacancies, were both accomplished without public 
notice of any kind being posted and without “any effort to 
contact anybody or any parents in Taliaferro County” 
(11-24, 108). Appellant Turner testified that the Negro 
who had been selected under these conditions was unrepre­
sentative of the Negro community (11-147, 151), and that if 
Negroes had been afforded an opportunity to choose, they 
would have selected someone far more qualified educa­
tionally, and otherwise, to serve (11-151):

“Mr. Casper Evans was taken from the lower bracket, 
the very lowest bracket of those persons who have 
attained a education” (11-153).®

D. O pin ion  o f  th e  D istrict C ourt

On August 5, 1968, the district court entered its opinion. 
The court stated that “the thrust of the complaint is that 
Negroes have no voice in school management and affairs” 
{infra, p. 30) and it concluded that the reconstitution of 
the grand jury was adequate relief. The court upheld the 
validity of all the challenged state statutes and constitu­
tional provisions and denied relief, other than the grant 
of a general injunction against the systematic exclusion 
of Negroes from grand juries. The court held that nothing 
in the contested statutes themselves “contemplates or per­
mits . . . systematic exclusion from the grand juries” and 
it affirmed their constitutionality both on their face and as 
applied {infra, p. 35). The Court did refer to appellants’

® “I submit”, said Mr. Turner, of the 72 year old man with a 
third grade education who was chosen, “that it is the community 
that he represents, and the people in that community . . . kne-̂ v 
nothing about the election of Mr. Evans, and . . . this certainly 
wouldn’t be the democratic process” (11-139, 147).



11

prayer that the system be placed in receivership “pending 
the selection of new county school board members on a 
constitutionally acceptable basis” (complaint, prayer 5). 
Appellants’ contention that their rights to equal protection 
of the laws were violated by reason of the total exclusion 
of non-freeholders as members of the board of education 
of the county was rejected:

“ [tjhere was no evidence to indicate that such a qualifi­
cation resulted in an invidious discrimination against 
any particular segment of the community, based on 
race or otherwise” {infra, p. 36).

Appellants filed timely notice of appeal to this Court on 
October 14, 1968.

The Questions Presented Are Substantial

I.

Ga. Code Ann., Tit. 5 9  § § 1 0 1 , 106  Are U nconstitu­
tionally Vague and Discrim inate Against Negroes by 
Perm itting Their Arbitrary E xclusion From  Service as 
Jury Com m issioners and Jurors in  V iolation o f the 
Fourteenth Am endm ent to the Constitution o f  the 
United States.

Challenges to racial discrimination in the selection of 
jurors have usually been mounted by persons indicted and 
convicted by juries from which Negroes were excluded. In 
recent years, numerous civil suits have been brought to 
require jury selection officials to eliminate race from the 
process of selection, e.g., Mitchell v. Johnson, 250 F. Supp. 
117 (M. D. Ala. 1966). The present action not only seeks 
to enjoin racial jury selection but challenges the vague



12

selection statutes themselves, for it is plain that until the 
unlimited discretion placed in the hands of local officials 
by such statutes is confined by objective standards non- 
racial selection is unlikely.' The Fifth Circuit has said: 
“It is this broad discretion located in a non-judicial office 
which provides the source of discrimination in the selection 
of juries.” * Lahat v. Bennett, 365 F. 2d 698, 713 (5th

The Next Phase,” 41 U. S. C.'  See Kuhn, “Jury Discrimination:
Law Rev. 235, 266-82 (1968).

® The following state statutes require jurors to be of a certain 
moral character;

Alabama Code Tit. 30 §21 (1959) : “all male citizens of the 
county who are generally reputed to be honest and intelligent 
men and are esteemed in the community for their integrity, 
good character and sound judgment. . . . ”
Arizona Rev. Stat. Ann. (1956) §21-201: “ . . . sober and in­
telligent, of sound mind and good moral character. . . . ” 
Arkansas Stat. Ann. (1962): §39-101 Grand Juror; “ . . . 
temperate and of good character. . . . ” §39-206 Other Jurors: 
“persons of good character, of approved integrity, sound 
judgment and reasonably informed. . . . ” See also §39-208: 
same as 206 and applies to grand jurors.
Connecticut Gen. Stat. Ann. (Supp. 1965): §51-217; “ . . . 
esteemed in their community as persons of good character, ap­
proved integrity, sound judgment and fair education. . . . ” 
Florida Stat. Ann. (1961) Tit. 5 §40.01: “law abiding citi­
zens of approved integrity, good character, sound judgment 
and intelligence. . . . ”
Illinois Ann. Stat. (Smith-Hurd Supp. 1966) Tit. 78 §2: “of 
fair character, of approved integrity, of sound judgment, well- 
informed. . . . ”
Iowa Code Ann. (1950) §601.1: “of good moral character, 
sound judgment. . . . ”
Kansas Stat. Ann. (1964) §43-102: “possessed of fair char­
acter and approved integrity. . . . ”
Louisiana Rev. Stat. Ann. (1950) §13-3041: “of well
known good character and standing in the community. . . . ” 
Maine Rev. Stat. Ann. tit. 14 §1254 (Supp. 1965) : “of good 
moral character, of approved integrity, of sound judgment 
and well-informed.. . . ”

{footnote continued on next page)



13

Cir. en banc 1966); see also Smith  v. Texas, 311 U. S. 128 
(1940); Rabinowitz v. United States, 366 F. 2d 34 (5th 
Cir. en banc 1966).

Recently in Whitus v. Georgia, 385 U. S. 545, 552 (1967) 
and Bostick v. South Carolina, 386 U. S. 479 (1967) this 
Court condemned statutes which injected race into the 
selection of jurymen because they provided an “oppor­
tunity to discriminate.” The vague and subjective intelli­
gence and character standards challenged here provide a 
similar “opportunity to discriminate,” an opportunity 
which was employed by selection officials, both before and 
after this litigation was ,commenced. Although the num­
ber of white and Negro voters in the county were sub­
stantially the same, only 11 of 130 of those on the grand

Maryland Ann. Code Art. 51 (Supp. 1966) §9: “with spe­
cial reference to the intelligence, sobriety and integrity of such 
persons.”
Michigan Stat. Ann. (Supp. 1965) §27A.1202: “of good 
character, of approved integrity, of sound judgment, well in­
formed.”
Missouri Arm. Stat. (Supp. 1966) §494.010: “sOher and in­
telligent, of good reputation”.
Nebraska Rev. Stat. (1964) §25-1601: “intelligent, of fair 
character, of approved integrity, well informed”.
New York Judic. Law (Supp. 1966) §504(5) : “of good 
character, of approved integrity, of sound judgment”.
North Carolina Gen. Stat. (1953) §9-1: “of good moral 
character and have sufScient intelligence to serve”.
Oklahoma Stat. Ann. tit. 38 (Supp. 1966) §28: “of sound 
mind and discretion, of good moral character”.
South Carolina Code Ann. (1962) §38-52: “of good moral 
character”.
Texas Rev. Civ. Stat. Ann. (1964) §2133: “of sound mind 
and good moral character”.
West Virginia, Code Ann. (1966) §52-1-4: “of sound judg­
ment, of good moral character”.
Wisconsin Stat. Ann. (1957) §255.01(5) : “esteemed in their 
communities as of good character and sound judgment”.



14

jury list were Negro until suit was filed {infra, p. 32). 
During tlie reeonii^osition process, 96% of the persons found 
by the jury commissioners not to be “upright and intel­
ligent citizens” were Negro. All the “discreet” persons 
selected to be jury commissioners over a jjeriod of 50 
years have been white. It is apparent that the inherent 
vagueness of the provisions involved at the very least serve 
as a convenient mask for discrimination.

Georgia law creates two levels at which virtually un­
limited discretion is delegated to persons possessing ap­
pointive powers. First, the discretion of the judge of the 
Superior Court is such that he can disqualify from eli­
gibility for the office of jury commissioner anyone he deems 
not to be “discreet” (Ga. Code Ann., Tit. 59 §101). Second, 
the discretion of the jury commissioners is such that they 
may disqualify from eligibility for service as jurors any­
one they find not to be an “upright and intelligent citizen” 
(Ga. Code Ann., Tit. 59 §106). Section 106 further pro­
vides that if at any time “it appears to the jury commis­
sioners” that the jury list is not a fairly representative 
cross-section of the “upright and intelligent citizens” of 
the county, they shall supplement the list by “going out 
into the county and personally acquainting themselves with 
other citizens of the county, including ujjright and intelli­
gent citizens of any significantly identifiable group in the 
county which may not be fairly represented thereon.” 
(Emphasis supplied.) Thus the statute first provides the 
jury commissioners with “the opportunity to discriminate,” 
then charges the very same persons with the power to 
determine subjectively whether in fact the opportunity 
“was resorted to” {Whitus, supra, 385 U. S. 552) and 
should be remedied.



15

I t is settled, however, that when constitutional rights 
are involved officials may not exercise a discretion which 
consists solely of their own Judgment unguided by stat­
utory or other guidelines. In other spheres of govern­
mental activity this Court has declared similar language 
permitting public officials to make subjective decisions un­
constitutionally vague: “unreasonable charges” United 
States V. L. Cohen Grocery Co., 255 U. S. 81 (1921); “un­
reasonable profits” Cline v. Frink Dairy Co., 274 U. S. 445 
(1927); “reasonable time” Herndon v. Lowry, 301 U. S. 242 
(1937); “sacrilegious” Joseph Burstyn, Inc. v. Wilson, 343 
U. S. 495 (1952); “so massed as to become vehicles for 
excitement” (a limiting interpretation of “indecent or ob­
scene”) Winters v. New York, 333 U. S. 507 (1948); “im­
moral” Commercial Pictures Corp. v. Regents of Univer­
sity of New York reported with Superior Films, Inc. v. 
Department of Education, 346 U. S. 587 (1954); “an act 
likely to produce violence” in Edwards v. South Carolina, 
373 U. S. 229 (1963); “subversive person” in Baggett v. 
Bullitt, 377 U. S. 360 (1964); “reprehensive in some re­
spect” ; “improper” ; and outrageous to “morality and Jus­
tice” Giaccio v. Pennsylvania, 383 U. S. 339 (1966). See 
also Staub v. City of Baxley, 355 U. S. 313 (1958); South 
Carolina v. Katsenhach, 383 U. S. 301, 312, 313 (1966) 
Louisiana v. United States, 380 U. S. 145, 153 (1965); see 
also United States v. Atkins, 323 F. 2d 733, 742-743 (5th 
Cir. 1963); Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala.)

® Dealing with voting qualifications imposed by South Carolina 
Law similar to those of Sections 101 and 106, the Court declared 
in Katzenbach, 383 U. S. at 312-313:

“ . . . the good morals requirement is so vague and subjective 
that it has constituted an open invitation to abuse at the 
hands of voting officials.”



16

ajf’d per curiam, 336 U. S. 933 (1949); Board of Super­
visors V. Ludley, 252 F. 2d, 372, 74 (5th Cir. 1958).

Eeqnirements of specificity are at least as necessary in 
a selection system for jurors because “exclusion from jury 
service is at war without basic concepts of a democratic 
society.” Smith v. Texas, 311 U. S. 128, 130 (1940) and be­
cause, as is true with racial discrimination in voting^ (an 
analogy especially pertinent here in light of the dual role 
of the grand jury system), excessive discretion in the 
hands of local officials thwarts nonracial selection. Smith 
V. Texas, supra; Lahat v. Bennett, supra, at 365 F. 2d 
712, 713. Furthermore, while injunctions against racial 
selection methods may be sufficient to prevent blatant acts 
of discriminatory exclusion, more subtle forms of the prac­
tice survive and will continue to survive as long as such 
tools remain available. At the first hearing of this cause, 
the lower court, in effect, ordered recomposition of Talia­
ferro County jury list on a non-discriminatory basis. 
While the result was an increase in Negro selection, an 
overwhelming proportion of those excluded as not “up­
right and intelligent citizens” were Negro. Thus, under 
the existing statutory scheme it may well be possible to 
eliminate the total exclusion but not the racial limitation 
of Negroes from the jury rolls. It is not, however, only 
exclusion but limitation on the basis of race which the 
Constitution prohibits: “Discriminations against a race 
by barring or limiting citizens of that race from partici­
pation in jury service are odious to our thought and our 
Constitution” (emphasis added). Brown v. Allen, 344

_ Condemnation of discretion in the hands of state voting of­
ficials is the heart of two recent decisions of the Court. See United 
States V. Mississippi, 380 U. S. 128 (1965) and Louisiana v. United 
States, 380 U. S. 145 (1965).



17

U. S. 433, 470-471 (1953) citing Brwnson v. North Carolina, 
333 U. S. 851 (1948); Cassell v. Texas, 339 U. S. 282, 286, 
287 (1950).”

It may well be that the jury commissioners in this 
county truly believe that of all the registered voters who 
are by reason of faulty intelligence or character ineligible 
to serve as jurors, 96% are Negroes. They cannot be 
enjoined from that belief. It is possible, however, for 
them to be prohibited from bringing such opinions, similar 
to those branded a “violent presumption” in Neal v. Dela­
ware, 103 U. S. 370, 397 (1881), to bear upon decisions 
as to who should be setected as jurors. As was true in 
Louisiana v. United States, “the vice cannot be cured by 
an injunction enjoining its unfair application” 380 U. S. 
145, 150 n. 9 (1965), but only by prohibiting the use of 
a vague and subjective standard.

That an unconstitutional limitation of Negroes has taken place 
in Taliaferro County is shown by the fact that in compiling a new 
list of jurors, the jury commissioners had 304 names (113 Negroes 
or 37%; 191 whites or 63%) remaining after randomly discard­
ing half the registered voters not disqualified. One of the statutory 
standards of disqualification, the character test, in effect, operated 
to exclude Negroes only: Of the 178 persons excluded, 171 were 
Negro, 7 were white. Thus prior to application of the character 
test there was approximately a 50-50 percentage breakdown re­
flected on the lists if we assume, as is likely, that the random num­
ber discarded merely halved the numbers of the whites and Negroes 
on the initial list. As of all those disqualified by the test, 96% were 
Negro, the result of the test’s application was to reduce the Negro 
representation on the revised list from approximately 50% (the 
proportion of Negro voters) to 37%.



18

II.

Georgia Constitutional and Statutory Provisions for  
Selection o f  School Board Members Operate in  Talia­
ferro County to E xclude Negroes From Participation in  
the Selection o f  Board Members in  V iolation o f  the  
Thirteenth. Fourteenth, and F ifteenth Am endm ents to 
the Constitution o f  the United Slates.

Althongh Negroes eonstitnte about 60% of the residents 
and 50% of the registered voters in Taliaferro County, 
they long have been virtually excluded from jury service. 
Because the eounry grand jury appoints members of the 
sciLOot roanl. Nrgn'es were also excluded from memfer- 
ship altnocgh stut.*e 19^ . the public schools have heen at- 
tmided and. staffed solely cy Negntes. ‘bounty whites send- 
tag tietr luuiireu ~r private seho«tL or to other counties 
vj lesegrrjganjjn. A fter a ue-artnr in  the ffetrm t
cjur:’ estahihffled. iriatmt iisreaar-i of Ne'Ztrtes* 'oonstfru:- 
uouai rights, tie  niry nmmiissauters rscompcsed the jurv 
is c  ^  iadiTw-s

vniaes
'e

5i%

rramr ror  ̂ v :^  tausen, 
■% vhihfs___

rnn miss use rimnoseu Hti 

____ 5r%
----- . '~st%

tnev grraonr, in'- rhnr sciiecief rmr Ntegr-r ^ n f me 
vriircf tf iii, tvrr va-cancies nr, tie j\t»s,ru tc eiurfimni 
uur tie  hoarc vith totit wintes s n i, fur fhe iirsr "ine i t  
at least 30 years, a Negro.



19

Appellants contend in section I, supra, that the jury list, 
as revised, violates the Fourteenth Amendment because it 
was revised pursuant to unconstitutionally vague state 
constitutional and statutory provisions which provide an 
opportunity to discriminate on the basis of race. But re­
gardless of whether appellants’ contentions with respect 
to the vagueness of Georgia jury selection statutes are 
correct, the system of selecting grand jurors in Taliaferro 
County must fall for the reason that the grand jury plays 
the essentially political role of selecting school board mem­
bers. In short, even if equality of representation of the 
races may not be required in selecting eligible jurors, 
stricter requirements of fair representation apply here: 
“the theme of the Constitution is equality among citizens 
in the exercise of their political rights.” MacDougall v. 
Green, 335 U. S. 281, 290 (1948) (Mr. Justice Douglas 
dissenting) cited with approval in Reynolds v. Sims, 377 
U. S. 533, 564 fn. 41 (1964).

While the particular system of selection of hoard mem­
bers involved does not provide for direct election, that 
fact does not diminish the rights of Negroes to be afforded 
full and equal participation in it. Sailors v. Board of Edu­
cation of Kent County, 387 U. S. 105 (1967) illustrates the 
principle that the right of states to regulate their political 
subdivisions may in no instance validate racial discrimina­
tion. There a system for selection of school board officials 
was held not subject to “one man, one vote” requirements, 
the latter being held to be subordinate to the right of 
states to use appointive, non-representative methods, for 
the choosing of administrative officials. But this Court was 
careful to distinguish racial discrimination in the political 
process from the Sailors holding (387 II. S. at 108-109):



20

“A State cannot, of course, manipulate its political 
subdivisions so as to defeat a federally protected right, 
as for example, by realigning political subdivisions so 
as to deny a person his vote because of race, [footnote 
omitted] Gomillion v. Lightfoot, 364 U. S. 339, 345.”

Certainly this exception to the Sailors rule prohibits state 
action to dilute the influence of Negroes in the class of 
citizens choosing, appointing or electing members of a 
political body. It can hardly be argued that the policy 
of the Thirteenth, Fourteenth, and Fifteenth Amendments 
contemplates permissible exclusions of Negroes from a po­
litical process merely because the particular form of selec­
tion involved is not a general election. The primary pur­
pose of those Amendments, recognized in numerous 
decisions of this Court,^^ is to undo the effects of slavery 
upon the civil rights of the Negro race. That purpose is 
subverted by permitting exclusion of Negroes from any 
political process, whether or not a regular election. Mr. 
Justice Black, concurring, stated the essential nature of 
the prohibited evil in Terry v. Adams, where the scheme 
invalidated stripped “Negroes of every vestige of influence 
in selecting the officials who control the local county mat­
ters that intimately touch the daily lives of citizens,” 345 
U. S. 461, 470 (1953). Terry voided the “pre-primary 
endorsement elections of a privately run organization on 
the ground that since that endorsement virtually assured 
eventual election of the person supjjorted, the state could 
not permit the exclusion of Negroes from the endorsement 
vote. Such exclusion was disallowed, even though not tak-

See Shelley v. Kraenier, 334 U. S. 1, 23 (1948) and cases cited 
in footnote 30, Xixo7i v. Condon, 286 U. S. 73, 89 (1932), Nixon 
V. Herndon, 273 V. S. 536, 540-541 (1927).



21

ing place at a general or even primary election, simply 
because its real effect was that described by Mr. Justice 
Black.

In Taliaferro County, the method for selection of board 
members prevents the Negro community from effectively 
influencing the choice of officials whose decisions critically 
affect the lives of themselves and their children. While 
constituting one half of the voters of the county, and 
all of the school children, the effect of the system of se­
lection is to render them a minority of those who select 
board members. In Reynolds v. Sims, supra, this Court 
stated that “since the right to franchise in a free and un­
impaired manner is preservative of other basic civil and 
political rights, any alleged infringement of the right to 
vote must be carefully and meticulously scrutinized.” 377 
U. S. at 562 (emphasis added). The “basic civil and 
political rights” of Negroes in Taliaferro County, in 
particular their right to a school system undiluted by 
segregation or control by those who have no interest in 
educational quality, are jeopardized by infringement of 
their power to select school officials. The evil is not dimin­
ished because all Negroes have not been precluded from 
participation in the selection process. “ (D)ilution of Ne­
gro voting power . . .  is just as discriminatory as com­
plete disfranchisement or total segregation.” Sims v. Bag­
gett, 247 F. Supp. 96, 109 (M. D. Ala. 1965); to the same 
effect see also Smith v. Paris, 257 F. Supp. 901 (M. D. Ala., 
N. D. 1966) aff’d and modified as to collateral matter, 386 
F. 2d 979 (5th Cir. 1967).^^

The Sailors rule does not negate the relevance of all aspects 
of reapportionment law for that case implied what Sims v. Baggett, 
supra, states explicitly that “the Constitution itself requires a dis­
tinction between . , . political . . . gerrymandering and gerry-



22

Nor is the injury to appellants lessened by the fact 
that a Negro was finally put on the school hoard after the 
first hearing in this cause. There is no evidence that the 
person selected was anything but a token appointment by 
the grand jury under pressure of this action. Appellant 
Turner testified that the individual selected is not rep­
resentative of the Negro community. In any ease, the es­
sence of appellants’ claim is that they, and the class they 
represent, are limited in their power of choosing hoard 
members; that claim is in no way weakened by the fact 
that the school hoard might have appointed someone who 
also might have been chosen if the Negro community had 
the electoral power to which it is entitled. To paraphrase 
Gomillion v. Lightfoot, 364 U. S. 339 (1960) the ines­
capable effect of this long established scheme is to despoil 
Negro citizens, and only them, of their right to participate 
meaningfully in the selection of school board members.

Where Negroes have been deprived of their political 
rights the remedy has been invalidation of the discrimina­
tory features of the system, e.g.. Lane v. Wilson, 307 U. S. 
268 (1939); Smith v. Allwright, 321 U. S. 649 (1944). 
Where a vague delegation of power has been the mecha­
nism involved, the delegation has been abolished, Louisiana 
V. U. 8., supra. In addition to such relief, appellants also 
sought appointment of a receiver to operate the school 
system until a constitutional sj^stem selecting board mem­
bers could be instituted. The district court erred funda­

mandering for the purpose of racial discrimination” (247 F. Supp. 
at 105). For the view that all civil rights of Negroes are in a 
distinct position in the protective scheme of the Fourteenth Amend­
ment, see cases cited in footnote 12, supra; Slaughter House Cases, 
83 U. S. 36, 81 (1873) ; Harper v. Virginia Board of Elections, 383 
U. S. 663, 682 dissenting opinion of Mr. Justice Harlan n. 3 (1966).



23

mentally in not adopting one of the available remedies 
which would eliminate diminution of Negro political rights.

In this case the deprivation of political power through 
the layers of discretion authorized by the statutory selec­
tion scheme powerfully affects “matters that intimately 
touch the daily lives of citizens,” Terry, supra. The proper 
education of their children has been recognized time and 
again as of crucial importance to the Negro race since 
Brown v. Board of Education, 347 U. S. 483 (1954). That 
interest cannot be adequately protected within the context 
of an administrative structure which is subject to total 
domination by the white community, a community which 
has continually and consistently shown itself hostile to the 
interests and rights of Negroes. Only three years ago 
white resistance to integration of the schools was so great 
as to necessitate a federal court to order placement of the 
system in receivership. Since the termination of that 
takeover no change in white community sentiment has been 
manifested. There is no evidence in the record of any 
significant attempt by that community, or its school board, 
to reverse the exodus of white students from the imblic 
schools. The school board refuses to even listen to the 
grievances of the Negro parents whose children do attend 
the schools. In such circumstances, the Georgia scheme for 
selecting school board members operates in this county 
to deprive appellants of rights guaranteed by the Con­
stitution.



24

III.

The State’s R estriction o f  M embership on County 
Boards o f  Education to Freeholders Violates the Equal 
Protection Clause o f  the Fourteenth Am endm ent.

The Equal Protection Clause of the Fourteenth Amend­
ment commands that distinctions drawn by a state— 
whether in the exaction of pains or in the allowance of 
benefits-—must not be irrelevant, arbitrary, or invidious. 
Where a state chooses to grant an advantage to one class 
and not to others “ [t]he attempted classification . . . must 
always rest upon some difference which bears a reasonable 
and just relation to the action in respect to which the 
classification is proposed, and can never be made arbi­
trarily and without any such basis.” Gulf, Colorado and 
Santa Fe Ry. v. Ellis, 165 U. S. 150, 155, 159 (1897). See 
e.g., Skinner v. Oklahoma, 316 U. S. 535 (1942); Baxstrom  
V. Her old, 383 U. S. 107 (1966). Georgia’s constitutional 
and statutory limitation on the right to serve as a school 
board member to “five freeholders” (Ga. Code Ann. Tit. 2, 
§6801; Tit. 32, §902) is clearly in violation of these require­
ments for such a limitation is palpably arbitrary and 
wholly irrelevant to the achievement of any legitimate 
state objective. The Georgia property test is as irrational 
standard for membership on a county school board as was 
the poll tax as a test of voting qualifications. Harper v. 
Virginia Board of Elections, 383 U. S. 663 (1966).

The court below did not conclude that the freeholder re­
quirement bore a reasonable relationship to any legitimate 
incident of school board membership. In sustaining the 
freehold qualification, the court held only that there was



25

no showing that a property harrier discriminated against 
any particular segment of the community:

There was no evidence to indicate that such a qualifi­
cation resulted in an invidious discrimination against 
any particular segment of the community, based on 
race or otherwise^ {infra, p. 36).

Appellants contend that such a holding is unsupport- 
able. Numerous decisions of this Court, e.g., Gideon v. 
Wainwright, 372 U. S. 335 (1963); Griffin v. Illinois, 351 
U. S. 12 (1956); Smith  v. Bennett, 365 U. S. 708 (1961) 
stand for the proposition that the poor form a class pro­
tected by the Equal Protection Clause against state legis­
lation which discriminates on the basis of wealth. While it’s 
true those cases dealt with the rights of the criminally ac­
cused, Harper, supra, makes plain that the Equal Protection 
Clause prohibits discriminatory treatment of the poor in 
the political arena.^'’

Decisions in two recent cases demonstrate that Harper 
logically compels the demise of all financial restraints upon 
the enjoyment of political rights. Significantly, both cases 
dealt with the barrier involved in the instant case—the 
antiquated condition of a right on the ownership of real

Whatever the basis of this holding it should not be understood 
as a finding that appellants lack standing, for the district court 
granted the intervention of a plaintiff father of five school children 
and non-freeholder who plainly possessed requisite standing to 
challenge a statute which prohibited him from serving on the 
coxmty school board.

Although Harper’s direct extension applied only to the right 
to choose officials, it is clear that the right to seek office can also 
not be infringed on the basis of invidious discriminations. Bond 
V. Floyd, 385 U. S. 116 (1966) ; Anderson v. Martin, 375 U. S. 
399, 401-402 (1964).



26

property. In Pierce v. Ossining, ■—— F. Supp. — — (No. 68 
Civ. 4150, S. D. N. Y., decided Nov. 1, 1968), the property 
requirement struck down was a prerequisite to voting in a 
town election, and in Landes v. Town of Hempstead, 231 
N. E. 2d 120, 20 N. Y. 2d 417 (1967), the New York Court 
of Appeals rejected a property requirement as a limitation 
on the right to hold office. These decisions rely upon the 
clear import of Harper that statutory burdens on the poor 
are facially suspect and to be upheld only when the state 
demonstrates a compelling justification:

[LJines drawn on the basis of wealth or property, like 
those of race {Korematsu v. United States, 323 U. S. 
214, 216, 89 L. ed. 194, 198, 65 S. Ct. 193), are tradi­
tionally disfavored [citing Edwards v. California, 314 
U. S. 160, 184-185 (1941); Griffin, supra; and Douglas 
v. California, 372 U. S. 353 (1963)] (383 U. S. at 668).

Even if distinctions based on wealth may at times be justi­
fied, the freeholder requirement involved here cannot with­
stand constitutional attack for it has no rational relation­
ship to the duties of members of the board of education. 
I t might, perhaps, be argued that real property owners 
have a special interest in, or competence with respect to, 
the collection of taxes which support the schools. Assum­
ing, arguendo, that the state might broadly exclude all 
non-freeholders from board membership for such a reason, 
the Georgia restriction is not thereby sustainable. The 
board of education does not itself collect any school taxes, 
Ga. Code Ann. Tit. 32, §1127, or set tax rates. (The board 
may only recommend a school tax rate to the responsible 
county authorities, Ga. Code Ann. Tit. 32, §1118.) The 
property which is potentially subject to the tax is by no 
means limited to that of individual freeholders, for the



27

property of corporations, both real and personal, is sub­
ject to assessment for school purposes, Ga. Code Ann., 
Tit. 32, §1116. Moreover, the budget of the Taliaferro 
school system includes but a small proportion of funds 
raised by ad valorem taxes ($39,000 out of a total of 
$267,611.65). (Answers of Defendants Cranston Jones 
et al. to Interrogatories, answers 26 and 27.) The re­
mainder of the school budget comes from a variety of 
state and federal sources. A further indication that school 
board members are so limited in their financial levying 
power as to make the freehold qualification without rele­
vance to their powers and duties is the limit on school tax 
rates to be found in the Georgia Constitution, which re­
stricts a county board to a levy of no greater than 20 mills 
per dollar of assessed value unless recourse is had to the 
voters of the county. Georgia Code Ann., Tit. 2 §7501; Com­
missioners of Chatham Cownty v. Savannah Electric and 
Power Company, 112 S. E. 2d 665, 215 Ga. 636 (I960).

Appellants contend, therefore, that the court below erred 
in not finding as the New York Court of Appeals found 
for town government that “it is impossible . . .  to find any 
rational connection between qualifications for administer­
ing [school] affairs and ownership of real property” 
Landes v. Town of Hempstead, 20 N. Y. 2d at 421. We em­
phasize that nothing appellants urge detracts in the least 
from the power of the states to assure that competent 
persons administer the public schools. In Ahington School 
District v. Schempp, 374 U. S. 203 (1963) for example, this 
Court recognized the special stake parents have in the 
proper administration of their schools by granting them 
standing to contest unconstitutional practices taking place 
in them. Georgia law does not, however, recognize a group



28

with a special concern for the schools by limiting hoard 
members to freeholders; on the contrary, it vests member­
ship in a group with no such special concern. Where an 
interest as vital as the operation and management of the 
schools is involved, a state violates the Equal Protection 
Clause by restricting control of its educational establish­
ment to those who own a particular class of property.

CONCLUSION

For the foregoing reasons probable jurisdiction  
should be noted.

Respectfully submitted,

J ack Gbeenbeeg 
Michael Meltsker

10 Columbus Circle
New York, New York 10019

H oward Moore, J r.
P eter R indskopf

8591/̂  Hunter Street, N. W. 
Atlanta, Georgia

Attorneys for Appellants



A P P E N D I X



29

APPENDIX

O pinion and Order

I n  t h e

UNITED STATES DISTRICT COURT 

F or the S outhern D istrict of Georgia 

A ugusta D ivision 

(Filed: August 5,1968)

Civil Action No. 1357

Calvin T urner, et al.,

-V .-

W. W. F ouche, et al.,

Plaintiffs,

Defendants.

B e f o r e  :
B ell, Circuit Judge and 

S carlett and Morgan, District Judges.

P er Curiam ;

This case is quasi-sequential to Turner v. Goolsby, S. D. 
Ga., 1966, 255 F. Supp. 724, also a three-judge matter, 
and that case is referred to as background. See also United 
States V. Jefferson County Board of Education, 380 F. 2d 
385, dissenting opinion, p. 416, fn. 6. These decisions point 
to the fact that the Taliaferro County school system is de­
segregated to the extent that there is only one grammar 
school and one high school in the entire system but there



30

are no white children attending the public school systemd 
On the other hand, the school board members are all of 
the white race. This set of circumstances led to the in­
stant class action brought by a Negro school child and her 
father on behalf of all Negro residents of Taliaferro 
County, Georgia, similarly situated. Another father and 
his five school children were added later as parties plain­
tiff.

The thrust of the complaint is that the Negroes have 
no voice in school management and affairs in that there 
are no Negroes on the school board. It is contended that 
Art. I l l ,  § V, HI of the Constitution of the State of Geor­
gia of 1945, Ga. Code Ann., § 2-6801, and Ga. Code Ann., 
§§ 32-902, 902.1, 903 and 905, all having to do with the 
election of county school boards by the grand jury, are 
unconstitutional under the equal protection and due process 
clauses of the Fourteenth Amendment and under the Thir­
teenth Amendment, both facially and as applied by reason 
of the systematic and long continued exclusion of Negroes 
and non-freeholders as members of the Board of Educa­
tion of Taliaferro County, Georgia, and on the selecting 
grand juries. The same contention is made with respect 
to the Georgia laws regarding the appointment of and 
service as jury commissioners. Ga. Code Ann., § 59-101 
and 106 (Ga. Laws 1967, p. 251, Vol. 1). Here again un­
constitutionality in application is asserted on the basis of

^According to the evidence in the instant case, in the 1966-67 
school term there were 458 Negro children in the system. There 
were 72 white children attending a private school in grades one 
through ten. Cf. the recent Supreme Court decisions involving the 
desegregation of small rural school systems in Virginia and Arkan­
sas, respectively. Green v. County School Board of New Kent
County, Virginia, 1968,----- U. S .------ , 88 S. C t.---- -, 20 L. Ed. 2d
716; Baney v. The Board of Education of the Gould School District, 
1968, 88 U. S .----- , ----- S. Ct. - — , 20 L. Ed. 2d 727.



31

systematic exclusion of members of the Negro race from 
service as jury commissioner. Unconstitutionality is 
claimed also by reason of the alleged uncertainty, indefi­
niteness, and vagueness of the standards set forth in each 
of the statutes.^

Complainants seek an order declaring the aforesaid 
Georgia Constitutional provision and statutes unconstitu­
tional on their face and as applied, and they also pray for 
ancillary money damages in the amount of $500,000 to 
compensate them for past deprivations and denials of fed­
eral rights. By amendment they pray for attorneys fees.

Defendants named in the complaint are the members of 
the Board of Education of Taliaferro County and the jury 
commissioners of Taliaferro County. Additionally, three 
citizens of Taliaferro County were sued individually and 
in their capacity as grand jurors of Taliaferro County 
but they were dismissed by an order entered on January 
30, 1968 granting a motion to dismiss for failure to state 
a claim against them upon which relief could be granted.

A three-judge District Court was convened under 28 
u s e  A, §■§ 2281 and 2284. The case was heard on January 
23, 1968. The evidence indicated and the court announced 
then and now so finds that Negroes were being systemati­
cally excluded from the grand juries through token in­
clusion. Jurors were being selected by the jury commis­
sioners from the voter registration lists as required by 
the Georgia statute, Ga. Code § 59-106, supra. The num-

 ̂Another allegation is that the school board has deprived Negro 
school children of text books, facilities, laboratories, recreation facil­
ities, teaching programs, bus transportation and other benefits to 
the extent that they are ill equipped to advance in the modern 
world and are mere peons in the hands of the white race. This 
allegation fails utterly for want of proof and will be eliminated from 
the case at this point.



32

ber of Negro and white voters in the county were substan­
tially the same. I t developed that there were 272 whites 
and 56 Negroes on the traverse jury list; 119 whites and 
only 11 Negroes on the grand jury list. I t  appeared also 
without contradiction that jury commissioners were all 
white and that the members of the Board of Education were 
all white. The grand jury situation was such that Negroes 
had little chance of appointment to the school board.

The hearing was adjourned and Charles J. Bloch, Esq., 
of counsel for the defendants, was directed by the court, 
pending the continued hearing, to familiarize the defen­
dants with the provisions of law relating to the prohibi­
tion against systematically excluding Negroes from the 
jury system. The hearing was resumed on February 23, 
1968 and Mr. Bloch reported to the court and introduced 
evidence to the effect that Honorable R. L. Stephens, 
Judge of the Superior County of Taliaferro County, Geor­
gia, had by order dated January 26, 1968, discharged the 
grand jury and required that the jury lists, both traverse 
and grand, be revised in light of the oral pronouncement 
by this court that the grand jury master list was illegally 
composed. The jurj^ commissioners were directed by Judge 
Stephens to immediately recompose the jury lists. The 
following is from the report filed on behalf of the jury 
commissioners. This report was substantiated by the tes­
timony of the chairman of the jury commissioners and 
stands uncontradicted.

“The Jury Commissioners met beginning on the 
Monday following the order, to wit, January 29, 1968. 
They had for their consideration the list of persons 
who were registered to vote in the last general election. 
That list contained a total of 2,152 names. We are 
advised that the Jury  Commissioners considered each



33

and every name in that list. When the Commissioners 
did not have any information with respect to a par­
ticular individual, they asked other people in the com­
munity about him or her. In particular, when they did 
not know about persons of the Negro race, they asked 
Negro people about them. In considering each and 
every name they eliminated the following numbers of 
names without regard to race for the following 
reasons:

Poor Health and over-age 374

Under 21 years of age 79

Dead 93

Persons who maintained Taliaferro County 
as a permanent place of residence but were 
most of the time away from the county 314

Persons who requested to be eliminated from 
consideration 48

Persons about whom information could not 
be obtained 225

Persons of both the white and Negro race 
who were rejected by the Jury  Commission­
ers as not conforming to the statutory qual­
ifications for juries either because of their 
being unintelligent or because of their not 
being upright citizens 178

Names on voters lists more than once 33

“This left a total of 608 names. Since 608 names 
are more than the Jury  Commissioners deemed to be 
needed in the traverse jury box, they arranged these



34

608 names in alphabetical order, and took every other 
name on the list alternately and placed those names 
on the traverse jury list. This left a total of 304 names, 
and only then did the Commissioners look to see how 
many of these 304 names were those of Negroes and 
how many were those of whites. They determined that 
113 were Negroes and 191 were white.

“Their next task was to select not more than two- 
fifths of this traverse jury list for the grand jury 
list. They decided that the fairest system would be to 
draw names by lot. They drew a total of 121 names 
by lot and put those names on the grand jury list. 
Having done that, they looked to see how many were 
of the Negro race and how many of the white race. 
They ascertained that 44 were the names of Negroes 
and 77 were names of whites.”

It developed that the jury commissioners were assisted 
by two Negro residents of the county in making the jury 
revision. The chairman of jury commissioners agreed that 
a Negro would be appointed as clerk or secretary to the 
commissioners until such time as a Negro or Negroes could 
be appointed to membership on the commission in order 
that the Negroes of the county, in the meantime, would 
have some representation in the operation of the jury sys­
tem.

The court requested the chairman of the jury commis­
sioners to designate by race those persons who were on the 
voter registration list and who were eliminated from jury 
service. That was done subsequent to the adjourned hear­
ing Avith the following result: 71 of the under 21 group 
Avere Negroes; 191 of those in poor health Avere Negroes; 
263 of the 533 who were away from Taliaferro County were



35

Negroes; 171 of the 178 disqualified were Negroes; while 
only 3 of the 43 persons who requested to be relieved from 
jury duty were of the Negro race. The other categories 
were unknown as to race.

After the new grand and traverse jury lists had been 
completed and after all the names had been put in the re­
spective jury boxes, a new grand jury was drawn by 
Judge Stevens from the jury box by lot. A total of 32 grand 
jurors were drawn: 9 Negroes and 23 whites. The grand 
jury actually serving consisted of 23 grand jurors, 17 of 
whom were whites and 6 Negroes, the others having been 
excused by the court.

That grand jury convened on Friday, February 16, for 
the purpose of considering the regular business of the court 
and for the purpose of confirming or rejecting persons who 
had been selected by the Board of Education of Taliaferro 
County, Georgia, to succeed Horace E. Williams, Jr. for a 
term to expire August 25, 1968, Mr. Williams having re­
signed, and to succeed Albert Drinkard, deceased, for a 
term to expire August 22,1969. Casper Evans, Sr., a Negro, 
had been chosen by the Board of Education to serve until 
the next meeting of the grand jury, and Moore Pittman, 
who is of the white race, had been chosen by the Board of 
Education to succeed Albert Drinkard, deceased, for the 
term expiring August 23, 1969. These choices by the Board 
of Education were confirmed by the grand jury.

The court finds and concludes that the grand jury list, 
as revised, is not unconstitutional or illegal. The court finds 
and concludes that the constitutional provision and the 
statutes in question are not unconstitutional on their face or 
as applied. There is nothing in the constitutional provision 
or in the statutes which contemplates or permits the result­
ing systematic exclusion from the grand juries. The stand-



36

ards are not inadequate. The facts showed systematic ex­
clusion in the administration of the grand jury system 
prior to the revision but this resulted from the adminis­
tration of the system and not from the constitutional pro­
vision and statutes under attack. The court also concludes 
that the provision requiring that members of the school 
board be freeholders has not been shown to be an uncon­
stitutional requirement. There was no evidence to indicate 
that such a qualification resulted in an invidious discrimina­
tion against any particular segment of the community, 
based on race or otherwise.

There is thus no merit in the three-judge District Court 
questions presented. There remain, however, two single 
judge questions. One is that of the systematic exclusion of 
Negroes from the grand juries. This is the question that 
stems from the manner in which the grand jury system was 
administered. The court in its discretion will retain juris­
diction over this single judge question and grant such relief 
as indicated. Turner v. Ooolshy, supra; and cf. United 
States V. Georgia Public Service Commission, 1962, 371 
U. S. 285, 83 S. Ct. 397, 9 L. Ed. 2d 317, to the effect that 
a three-judge District Court may dispose of a case on a 
ground that would not have justified calling a three-judge 
court. The jury commissioners will be enjoined from sys­
tematically excluding Negroes from the grand jury sys­
tem in Taliaferro County. Cf. Billingsley v. Clayton, 5 Cir., 
1966, 359 F. 2d 13.

The other single judge question concerns the prayer for 
damages. See 42 USCA § 1983 on the question of damages. 
Defendants claim a Seventh Amendment right to jury trial 
if the question is to be considered and we hold that there 
is merit in this contention. Dairy Queen, Inc. v. Wood, 
1962, 369 U. S. 469, 8 L. Ed. 2d 44. In view of the cum-



37

bersomeness which would be involved in a three-judge 
District Court jury trial and that such is not contemplated 
by the three-judge District Court statute, 28 USCA, § 2284, 
we decline, in our discretion, to entertain the question of 
ancillary damages.

All other prayers for relief are denied including the 
prayer for attorneys fees. Costs will be taxed against 
the defendant school board members and jury commission­
ers and the costs shall be allowed to include the expenses 
of comijlainants in traveling to Brunswick, Georgia for the 
adjourned hearing to the extent that may be possible under 
the costs statutes. The school board members are assessed 
on the basis that their conduct, in substantial measure, 
precipitated the suit.

Counsel for complainants may present an order enjoining 
the jury commissioners as aforesaid.

This 5th day of August 1968.

/ s /  Geiffin  B. B ell 
United States Circuit Judge

/&/ L ewis E . Morgan 
United States District Judge

/ s /  F rank Scarlett 
United States District Judge



38

Final Judgm ent

(Filed: September 19,1968)

On the 15th day of November, 1967, a complaint was filed 
in the United States District Court for the Southern Dis­
trict of Georgia, Augusta Division, for injunctive relief, 
declaratory judgment, and ancillary damages, in the above- 
styled cause. Pursuant to the prayers of the complaint, a 
three-judge District Court was convened, consisting of the 
Honorable Griffin B. Bell, Circuit Judge, Honorable Frank 
M. Scarlett, resident District Judge, and Honorable Lewis 
E. Morgan, designated District Judge. This cause, having 
come on for hearing, and having been heard by the Court 
on the pleadings and proofs of the parties, oral argument 
of counsel, and briefs of the parties, the Court having 
entered its opinion, incorporating its findings of fact and 
conclusions of law, with respect thereto on August 5, 1968, 
and being advised in the premises.

I t i s  n o w , t h e r e f o r e , o r d e r e d , a d j u d g e d  a n d  d e c r e e d , 

as follows:

E. C. Moore, Guy F. Beazley, J. M. Taylor, L. T. Lunce- 
ford, Eeuben H. Jones, and Clarence Griffith, Individually, 
and as Jury  Commissioners of Taliaferro County, Georgia, 
and their successors in office, are hereby permanently re­
strained and enjoined from systematically excluding Ne­
groes from the grand jury system in Taliaferro County, 
Georgia.

II

Article VIII, Section V, paragraph one of the Consti­
tution of the State of Georgia of 1945, 2 Georgia Code



39

Annotated, Section 6801, 59 Ga. Code Annotated, Sections 
101 and 106; and 32 Georgia Code Annotated, Sections 902, 
902.1, 903, and 905 are not unconstitutional on their face 
or as applied. We decline, in our discretion, to entertain 
the question of ancillary damages.

III

All other prayers for relief including the prayer for at­
torneys fees and all motions of the plaintiffs and defen­
dants, except the motion of defendants W. W. Fouche, 
Eastus Durham, and Elmo Bacon, sued herein individually 
and as representatives of the class of persons known as 
Grand Jurors of Taliaferro County, Georgia, which the 
Court hereinbefore granted, are denied.

IV

Costs, to the extent permitted by law, are assessed in 
favor of the plaintiffs, including the expenses of the com­
plainants in traveling to Brunswick, Georgia, for the ad­
journed hearing, against the defendant members of the 
Board of Education of Taliaferro County, Georgia, and 
defendant members of the Jury Commission of Taliaferro 
County, Georgia.

This .............. day of September, 1968.

Gbiffix  B. B ell 
United States Circuit Judge

Lewis R. Moegan 
United States Circuit Judge, 

Then United States District Judge

F eank M. S caelett 
Senior United States District Judge



40

Constitutional and Statutory Provisions Involved

1. Article VIII, Section V, paragraph I, of the Consti­
tution of the State of Georgia of 1945:

“Establishment and maintenance; hoard of educa­
tion; election, term, etc.—Authority is granted to coun­
ties to establish and maintain public schools within 
their limits. Each county, exclusive of any independ­
ent school system now in existence in a county, shall 
compose one school district and shall be confined to 
the control and management of a County Board of 
Education. The Grand Jury  of each county shall se­
lect from the citizens of their respective counties five 
freeholders, who shall constitute the County Board of 
Education. Said members shall be elected for the term 
of five years except that the first election of Board 
members under this Constitution shall be for such 
term that will provide for the expiration of the term 
of one member of the County Board of Education each 
year. In case of a vacancy on said Board by death, 
resignation of a member, or from any other cause 
other than the expiration of such member’s term of 
office, tlie Board shall by secret ballot elect his suc­
cessor, who shall hold office until the next Grand Jury 
convenes at which time the said Grand Jury  shall ap­
point tlie successor member of the Board for the un­
expired term. The members of the Coxmty Board of 
Education of such county shall be selected from that 
portion of the cormty not embraced within the terri­
tory of an independent school district.

The General Assembly shall have authority to make 
provision for local trustees of each school in a cmmtv



41

system and confer authority upon them to make rec­
ommendations as to budgets and em.ployment of 
teachers and other authorized employees.”

2. Title 32 Georgia Code Annotated:

“ (a) §902. Membership in County hoards.—The 
grand jury of each county (except those counties 
which are under a local system) shall, from time to 
time, select from the citizens of their respective 
counties five freeholders, who shall constitute the 
county board of education. Said members shall be 
elected for the term of four years, and shall hold their 
offices until their successors are elected and qualified. 
Provided, however, that no publisher of schoolbooks, 
nor any agent for such publisher, nor any person who 
shall be pecuniarily interested in the sale of school­
books, shall be eligible for election as members of 
any board of education or as county superintendent 
of schools; Provided, further, that whenever there 
is in a portion of any county a local school system 
having a board of education of its own, and receiving 
its pro rata of the public school fund directly from 
the State Superintendent of Schools, and having no 
dealings whatever with the county board of educa­
tion, then the members of the county board of edu­
cation of such county shall be selected from that 
portion of the county not embraced within the terri­
tory covered by such local system.” (Acts 1919, p. 
320.)

“ (b) §902.1. Selection of hoard members by grand 
jury .—The members of the county boards of educa­
tion in those counties in which the grand jury selects



42

such members pursuant to Article VIII, Section V., 
Paragraph I  of the Constitution of Georgia of 1945, 
as amended (Sec. 2-6801), shall he selected by the last 
grand jury immediately preceding the expiration of 
the term of the member that the member to he selected 
will replace.” (Acts 1953, Nov. Sess., p. 334.)

“ (c) §903. Qualifications of members.—The grand 
jury in selecting the members of the county board of 
education shall not select one of their own number 
then in session, nor shall they select any two of those 
selected from the same militia district or locality, nor 
shall they select any person who resides within the 
limits of a local school system operated independent 
of the county board of education, but shall apportion 
members of the board as far as practicable over the 
county; they shall elect men of good moral character, 
who shall have at least a fair knowledge of the ele­
mentary branches of an English education and be fa­
vorable to the common school system. Whenever a 
member of the board of education moves his residence 
into a militia district where another member of the 
hoard resides, or into a district or municipality that 
has an independent local school system, the member 
changing his residence shall immediately cease to be 
on the board and the vacancy shall be filled as required 
by law. Notwithstanding the foregoing provisions to 
the contrary, a county may provide by local law that 
two or more members of the board of education may 
be selected from the same militia district.” (Acts 1919, 
pp. 288, 321; 1965, p. 124.)

“ (d) §905. Certificate of election; removal; vacan­
cies.—^Whenever members of a county board are elected



43

or appointed, it shall be the duty of the clerk of the 
superior court to forward to the State Superintendent 
of Schools a certified statement of the facts, under the 
seal of the court, as evidence upon which to issue com­
missions. This statement must give the names of the 
members of the board chosen and state whom they 
succeed, whether the offices were vacated by resigna­
tion, death or otherwise. The evidence of the election 
of a county superintendent of schools shall be the cer­
tified statement of the secretary of the meeting of the 
board at which the election was held. Any member of 
a county board of education shall be removable by the 
judge of the superior court of the county, on the ad­
dress of two-thirds of the grand jury, for inefficiency, 
incapacity, general neglect of duty, or malfeasance 
or corruption in office, after opportunity to answer 
charges; the judges of the superior courts shall have 
the power to fill vacancies, by appointment, in the 
county board of education for the counties composing 
their respective judicial circuits, until the next session 
of the grand juries in and for said counties, when said 
vacancies shall be filled by said grand juries.” (Acts 
1919, p. 322.)

3. Title 59 Georgia Code Annotated:

“ (a) §101. Jury commissioners; appointment; num­
ber; qualifications; terms; removal.-—There shall be a 
board of jury commissioners, composed of six discreet 
persons, who are not practicing attorneys at law nor 
county officers, who shall hold their appointment for 
six years, and who shall be appointed by the judge of 
the superior court. On the first appointment two shall



44

be appointed for two years, two for four years, and 
two for six years, and their successors shall be ap­
pointed for six years. The judge shall have the right 
to remove said commissioners at any time, in his dis­
cretion, for cause, and appoint a successor: Provided, 
that no person shall be eligible or appointed to suc­
ceed himself as a member of said board of jury com­
missioners.” (Acts 1878-9, p. 27; 1887, p. 52; 1901, 
p. 43; 1935, p. 151.)

“ (b) §106. Immediately upon the passage of this 
Act and thereafter at least biennially, or, if the judge 
of the superior court shall direct, at least annually, 
on the first Monday in August, or within sixty (60) 
days thereafter, the board of jury commissioners shall 
compile and maintain and revise a jury list of upright 
and intelligent citizens of the county to serve as jurors. 
In composing such a list they shall select a fairly 
representative cross-section of the upright and intel­
ligent citizens of the county from the official regis­
tered voters’ list which was used in the last preceding 
general election. If at any time it appears to the jury 
commissioners that the jury list so composed, is not a 
fairly representative cross-section of the upright and 
intelligent citizens of the county, they shall supplement 
such list by going out into the county and personally 
acquainting themselves with other citizens of the 
county, including upright and intelligent citizens of 
any significantly identifiable group in the county which 
may not be fairly represented thereon.

“After selecting the citizens to serve as jurors, the 
jury commissioners shall select from the jury list a 
sufficient number, not exceeding two-fifths of the whole



45

number, to serve as grand jurors. The entire number 
first selected, including those afterwards selected as 
grand jurors, shall constitute the body of traverse 
jurors for the county, to be drawn for service as pro­
vided by law, except when a name which has already 
been drawn for the same term as a grand juror shall 
also be drawn as a traverse juror, such name shall be 
returned to the box and another drawn in its stead.”



RECORD PRESS — N. Y. C. 38