Turner v. Fouche Motion to Dismiss or Affirm with Supporting Brief on Behalf of Appellee

    IN THE

Supreme Court of the United States
OCTOBER TERM, 1968

NO. 842

CALVIN TURNER, et al..
Appellants,

W. W. FOUCHE, et al..
Appellees.

On Appeal from the United States District Court 
for the Southern District of Georgia, 

Augusta Division

MOTION TO DISMISS OR AFFIRM, WITH 
SUPPORTING BRIEF ON BEHALF OF THE 

STATE OF GEORGIA, AN APPELLEE

Arthur K. Bolton 
Attorney General
Alfred L. Evans, Jr- 
Assistant Attorney General
J. Lee Perry
Assistant Attorney General



INDEX

MOTION TO DISMISS OR AFFIRM.

Page 

__  I

BRIEF IN SUPPORT OF MOTION TO DISMISS 
OR AFFIRM _____________________________  8

Opinion Below 

Jurisdiction __

PART I

Questions Presented 

Statement ______

. 4 

. 4 

: 4

PART II

'Jir^uftient ----------------------- ----------------- -— ----7

J. The appeal should be dismissed for want of 
jurisdiction in that it is not an appeal which 
falls within the scope of 28 U.S.C. § 1253__._:_i-:. 7

2. The judgment of the United States District 
Court should be affirmed on the ground that 
it is manifest that the questions upon which 
the decision depends were fully explored and 
correctly answered below, and are so unsub­
stantial as not to warrant further argument—___.10

(a) The statutes in question are not sus­
ceptible to constitutional attack upon 
the ground that they are overly vague 
and ambiguous ___________________10, 11



TABLE OF AUTHORITIES— continued
Page

(b) The subsidiary issue of discrimination 
against individuals who are not 
“freeholders” respecting membership on 
county boards of education is not properly 
raised, and in any event fails to present 
a substantial federal question__________ 20

Conclusion ________________________________ 2̂3

TABLE OF AUTHORITIES
Cases
Becraft v. Strohel, 287 N.Y.S. 22 (1936), aff’d.,

274 N.Y. 577, 10 N.E. 2d 560 (1937)___________22
Ex Parte Bransford, 310 U.S. 354 (1940)__________ 8
Moody V. Flowers, 387 U.S. 97 (1967)_______ „4, 8, 10
Phillips, Governor of Oklahoma v. United States, 

312 U.S. 246 (1941)_____________________ .8, 9
Powell V. Board of Education, 97 111. 375 (1851)___ 18
Query v. United States, 316 U.S. 486 (1942)______..10
Screws v. United States, 325 U.S. 91 (1945)____ 13, 19
Snowden V. Hughes, 321 U.S. 1 (1944)________ 11, 12
State V. McAllister, 38 W. Va. 485,

18 S.E. 770 (1893)_________________________ 22
Vought V. Wisconsin, 217 U.S. 590 (1910).

Constitutional Provision
U. S. Const. Art. Ill, § 1_____________

-22

.17

11



TABLE OF AUTHORITIES— continued

U. S. Const. Art. Ill, § 2-
Page 

__ 21

-4, 11,20U. S, Const. Amend. XIV---------------- ,—
Georgia Const. (1877) Art. VII, Sec. I, Par. I

(Ga. Code Ann. § 2-4901)----------------------------- 18
Georgia Const. (1945) Art. VII, Sec. II, Par. I 

(Ga. Code Ann. § 2-5501)-----------------— .18
Georgia Const. (1945) Art. VIII, Sec. V, Par. I

(Ga. Code Ann. § 2-6801)_______________9, 11, 20

Statutes
28 U.S.C. §§ 44, 133, 134_
28 U.S.C. § 1253_______
28 U.S.C. § 2281_______
28 U.S.C. § 2284 (2)____
Ga. Code Ann. § 32-902__
Ga. Code Ann. § 32-902. L
Ga. Code Ann. § 32-903__
Ga. Code Ann. § 32-905— 
Ga. Code Ann. § 59-101—  
Ga. Code Ann. § 59-106__

Miscellaneous
42 Am. Jur. Public Officers § 49_ 
22A C.J.S. Criminal Law § 676_ 
32 C.J.S. Evidence §§ 434, 436._

-15
-1, 4, 7, KI
___ ___  8

___ ._._'5'
_9, 11, 16, 20 
___ 9, 11, 16
_9, 11, 16, 18 
___ 9, 11, 16

_9, 11, 13, 15, 17 
___ 9, 11, 15, 17

-22
-15
-15

111



TABLE OF AUTHORITIES— continued

78 C.J.S. Schools ir School Districts § 1. 
82 G.JiS. Statutes § 68 (c)__________

Page
_ J 9

Black’s Law Dictionary (4th Ed. 1951) p. 793-
Webster^s Third New International Dictionary 

(3d Ed. 1961) p. 647__________________

-13, 19 
___ 20

.14

IV



IN THE

Supreme Court of the United States
OCTOBER TERM, 1968

NO. 842

CALVIN TURNER, et al..
Appellants,

V.

W. W. FOUCHE, et al..
Appellees.

On Appeal from the United States District Court 
for the Southern District of Georgia, 

Augusta Division

MOTION TO DISMISS OR AFFIRM
To the Honorable Chief Justice and Associate Jus­

tices of the Supreme Court of the United States:
Comes now the State of Georgia, an Appellee in the 

above styled proceeding, and pursuant to Rule 16 of 
this Honorable Court moves (1) that the appeal be 
dismissed for want of jurisdiction in that it is not one 
which falls within the scope of 28 U.S.C. § 1253, or, 
in the alternative (2) to aflBrm the judgment from

1



which the appeal was taken on the ground that the 
questions presented were fully explored and correctly 
decided below, and so unsubstantial as not to warrant 
further argument.

This______ day of January, 1969.

Arthur K. Bolton 
Attorney General

Alfred L. Evans  ̂Jr- 
Assistant Attorney General

J. Lee Perry
Assistant Attorney General



IN THE

Supreme Court of the United States
OCTOBER TERM, 1968

NO. 842

CALVIN TURNER, et al..
Appellants,

V.

W. W. FOUCHE, et al..
Appellees,

On Appeal from the United States District Court 
for the Southern District of (Georgia, 

Augusta Division

BRIEF IN SUPPORT OF MOTION TO 
DISMISS OR AFFIRM

PART I
OPINION BELOW

The opinion of the United States District Court for 
the Southern District of Georgia, Augusta Division, 
which is as yet unreported, is correctly set forth at pp. 
29-37 of the Appendix to Appellants’ Jurisdictional 
Statement.



JURISDICTION
Appellants seek to obtain this Court’s direct review 

of a decision of the United States District Court under 
28 U.S.C. § 1253. For reasons which are fully set forth 
in the Argument portion of this brief, it is the position 
of the State of Georgia, an Appellee, that this Court’s 
jurisdiction is not properly invoked under 28 U.S.C. 
§ 1253 and that under this Court’s decision in Moody v. 
Flowers, 387 U.S. 97 (1967) Appellants should have 
taken their appeal to the United States Court of Appeals 
for the Fifth Circuit.

QUESTIONS PRESENTED
1. Whether the instant appeal falls within the scope 

of 28 U.S.C. § 1253 so as to confer direct appellate juris­
diction upon this Court rather than the United States 
Court of Appeals for the Fifth Circuit?

2. Whether the State statutes attacked by Appellants 
are so vague and ambiguous as to be violative of the 
Fourteenth Amendment?

3. Whether any issue of discrimination in connection 
with a State constitutional requirement that members 
of county boards of education be “freeholders” has been 
properly raised, and, if such issue has been properly 
raised, whether it presents a substantial federal question?

STATEMENT
Calvin Turner, aggrieved by the all-white composi­

tion of the 5 member County Board of Education of 
Taliaferro County, Georgia, brought this action for him­
self, his minor daughter and for other similarly sit­



uated voters and school children of that county. The 
gist of the complaint was his contention that the various 
defendants (i.e. the individual county jury commission­
ers, grand jurors and members of the county school 
board) were discriminating against Negro citizens in 
their county-level administration of those State laws 
which pertain to the appointment of county school board 
members, and that as a result Negro citizens were de­
prived of a voice in school management or affairs. The 
relationship of the three groups of named defendants 
lies in the fact that under a State constitutional provi­
sion and statutory enactments cited by Appellants (plain­
tiffs below) the county school board members are ap  
pointed by the county grand jury which is in turn se­
lected by the county jury commissioners.

In addition to their main attack upon the allegedly 
improper administration of relevant State laws by de­
fendant county officials. Appellants, in order to obtain 
a three-judge district court, injected averments that the 
enactments were also facially unconstitutional. A three- 
judge district court was convened and the State of Geor-; 
gia was notified of the action pursuant to 28 U.S.C. § 
2284 (2). Upon receipt of such notice the State promptly 
moved to intervene as a party defendant, for the limited 
purpose of asserting the validity of the attacked consti­
tutional provision and statutes. The motion was granted 
by the three-judge court.

When the case came on for hearing on January 23, 
1968, the State neither introduced evidence nor took 
part in argument respecting the propriety or impro*- 
priety of the county level administration of its statutes 
by Taliaferro County officials, this being left to the very



able counsel for defendant county officials. The State did 
urge that if discriminatory administration existed in 
Taliaferro County it was not only unauthorized by the 
statutes in question, but was indeed in violation of such 
State statutes, which in and of themselves were both non- 
discriminatory and constitutional.

Upon considering the evidence which was introduced, 
the court observed from the bench that Negroes in Tal­
iaferro County did appear to be being systematically ex­
cluded from the county grand jury and consequently 
had little chance for appointment to the county board 
of education. The court subsequently adjourned the 
hearing after directing counsel for the defendant county 
officials to familiarize said defendants with the provi­
sions of law relating to the prohibition against systematic 
exclusion of Negroes.

During the adjournment the Judge of the Superior 
Court of Taliaferro County, in accordance with the 
United States District Court’s oral pronouncement, dis­
charged the grand jury and directed a non-discrimina- 
tory recomposition of county jury lists, both traverse and 
grand. The jury commissioners secured the services of 
two Negro residents of the county and proceeded to 
complete the revision. When the new grand jury con­
vened on February 16, 1968, it promptly filled one of 
the two existing vacancies on the county school board 
with a Negro citizen of Taliaferro County.

The hearing resumed on February 23, 1968, and evi­
dence of the revised jury lists as well as the procedure 
under which the new lists were composed was presented 
in detail by the defendant county officials. Upon con­
sideration of all of the evidence respecting revision of



the jury lists the United States District Court concluded 
that the same, as revised, were neither unconstitutional 
nor illegal. The court further concluded that the sys­
tematic exclusion in administration of the grand jury 
system prior to the court ordered revision was the re­
sult of faulty administration of the State constitutional 
provision and statutes by local officials, and not the re­
sult of any constitutional defect in the State enactments 
in and of themselves. In the words of the district court:

“There is no merit in the three-judge District 
Court questions presented.”

In its final judgment the district court granted Appel­
lants an injunction permanently restraining and en­
joining the Jury Commissioner and their successors in 
office from systematically excluding Negroes from the 
grand jury system in Taliaferro County, but rejected 
Appellants’ constitutional contentions respecting the 
statutes per se. The court declared instead that the at­
tacked provisions were not unconstitutional. Appellants 
did not appeal to the United States Court of Appeals for 
the Fifth Circuit but have instead sought to obtain direct 
review by this Court pursuant to 28 U.S.C. § 1253.

PART II 
ARGUMENT

1. The appeal should he dismissed for want of jur­
isdiction in that it is not an appeal which falls 
within the scope of 28 U.S.C. § 1253.

28 U.S.C. § 1253 provides:
“Except as otherwise provided by law, any party 

may appeal to the Supreme Court from an order 
granting or denying, after notice and hearing, an



8

interlocutory or permanent injunction in any civil 
action, suit or proceeding required by any Act of 
Congress to be heard and determined by a district 
court of three judges.” (Italics added.)

In Moody v. Flowers, 387 U.S. 97, 101 (1967) this 
Court emphasized the fact that its jurisdiction to review 
decisions of United States district courts under this 
statute was limited to those situations where the action 
was required to be heard and determined by a three- 
judge court, and did not exist merely because a three- 
judge court had in fact been convened or rendered a 
decision. This is in harmony with the related principle 
that 28 U.S.C. § 2281 (providing for the convening of 
three-judge courts in certain specified cases) is to be 
strictly rather than liberally construed. See Phillips, 
Governor of Oklahoma v. United States, 312 U.S. 246, 
251 (1941). In Moody, for example, the Court pointed 
out that a three-judge district court was not required 
in actions brought against local officials unless it was 
shown that said officials were performing the action com­
plained of pursuant to some statewide law or policy 
(387 U.S. at pp. 101-102). Quite obviously the “state­
wide law or policy” exception is not to be permitted to 
swallow the general rule of inapplicability of 28 U.S.C. 
§ 2281 to actions against county and other local officials 
by construing the exception to require nothing more 
than a showing that the local officials were acting under 
color of state law. To the contrary this Court, in Ex 
Parte Bransford, 310 U.S. 354, 361 (1940), clearly dis­
tinguished between those situations where the attack was 
in reality an attack upon improper administration of the 
statute (three-judge court not required) and those 
which in fact did amount to a substantial attack on the



statute itself (three-judge court required). In Bransford 
this Court further explained that the matter did not 
turn on what was alleged in the complaint and that the 
three-judge court requirement did not apply unless the 
action complained of was directly attributable to the 
statute, whether or not the statute was alleged to be 
unconstitutional.

The applicability of the foregoing legal precepts to 
the instant case is not difficult to discern. While Appel­
lants did make the bald assertion below that a State con­
stitutional provision (Art. VIII, Sec. V, Par. I; Ga. Code 
Ann. § 2-6801) and certain statutes (Ga. Code Ann. 
§§ 32-902, 32-902.1, 32-903, 32-905, 59-101 and 59-106) 
were racially discriminatory on their face, the emptiness 
of this contention is readily seen when one reads the 
statutes. Not only are they devoid of any mention of 
race (let alone any provision establishing a classification 
based upon race) but if anything, when taken together, 
they run in a direction exactly the opposite from that 
contended by Appellants. To illustrate. Appellants at­
tack Georgia Laws 1967, page 251 (Ga. Code Ann. 
§ 59-106) [which relates to the revision of jury lists and 
the selection of grand and traverse jurors] on the ground 
that it facially discriminates against them on racial 
grounds. Yet this very provision provides in part:

“If at any time it appears to the jury commis­
sioners that the jury list so composed, is not a fairly 
representative cross-section of the upright and in­
telligent citizens of the county, they shall supple­
ment such list by going out into the county and 
personally acquainting themselves with other citi­
zens of the county, including upright and intelli­
gent citizens of any significant identifiable group in



10

the county which may not be fairly represented 
thereon.”

We think it borders on the absurd to say that a jury 
commissioner of Taliaferro or any other county who 
engages in racial discrimination in the selection of jurors 
is doing so “pursuant to statewide law or policy.” See 
Moody V. Flowers, supra. He is to the contrary acting in 
flagrant violation of State law. This, of course, is not a 
three-judge court matter. Query v. United States, 316 
U.S. 486, 490 (1942).

We think that examination of the constitutional pro­
vision and statutes in question shows quite clearly that 
the United States District Court for the Southern Dis­
trict of Georgia was entirely correct in concluding that 
Appellants’ grievance was in fact one which was based 
entirely upon a wrongful administration of perfectly 
valid State statutes by local officials of Taliaferro County, 
and that in no instance could it reasonably be said that 
the wrongful administration by such county officials was 
directly attributable to the State statutes. The United 
States District Court was correct in its statement that 
there was no merit in the three-judge court questions, 
and, in accordance with Moody v. Flowers, supra. Ap­
pellants proper procedure was an appeal to the United 
States Court of Appeals for the Fifth Circuit and .not 
an appeal to this Court under color of 28 U.S.C. § 1253.
2. The judgment of the United States District Court 

should he affirmed on the ground that it is mani­
fest that the questions upon which the decision 
depends were fully explored and correctly an­
swered helow, and are so unsubstantial as not to 
warrant further argument.
(a) The statutes in question are not susceptible to



11

constitutional attack upon the ground that they 
are overly vague and ambiguous.

The State constitutional provision (Article VIII, Sec, 
V, Par. I o£ the Constitution o£ the State o£ Georgia o£ 
1945, Ga. Code Ann. § 2-6801) and State statutes in 
question (i.e. Ga. Code Ann. §§ 32-902, 32-902.1, 32- 
903, 32-905, 59-101 and 59-106) are correctly set £orth 
at pp. 40-45 o£ the Appendix to Appellants’ Jurisdic­
tional Statement.

It has already been pointed out that these provisions 
are devoid o£ any mention o£ race, much less creating 
discriminatory racial classifications, and that to the con­
trary they will, i£ correctly administered, be preventive 
o£ even unintentional discrimination. See Ga. Code Ann. 
§ 59-106.

In addition to their rather absurd contention that the 
statutes are racially discriminatory on their £ace, how­
ever, Appellants also advance the argument that the 
statutes in question violate the Fourteenth Amendment 
in that they set £orth standards and eligibility require­
ments which are overly vague and ambiguous. At the 
outset it may be questioned whether plaintiffs have 
standing to raise this question. The question o£ whether 
or not a statute is so completely unclear as to cause its 
application to violate the Constitution is ordinarily 
thought o£ as being a question o£ “due process.” Yet it 
is obvious that the lactual context in which this question 
is here raised is one which concerns an alleged wrong£ul 
denial o£ a political office existing pursuant to State law. 
In Snowden v. Hughes, 321 U.S. 1, 6-7 (1944) this Court 
pointed out that the right to hold State political office 
was derived solely £rom the relationship o£ the citizen



12

to his Siafe as established by State law and hence could 
not be the basis of a complaint under either the priv­
ileges and immunities clause or under the “due process” 
clause of the Fourteenth Amendment. With respect to 
its rejection of that plaintiff’s “due process’’ contentions 
the Court declared:

“More than forty years ago this Court determined 
that an unlawful denial by state action of a right to 
state political office is not a denial of property or 
of liberty secured by the due process clause * * *. 
Only once since has this Court had occasion to con­
sider the question and it then reaffirmed that con­
clusion * * * as we reaffirm it now.’’

But it is in any event hardly necessary to go to the 
question of what if any vitality Snowden v. Hughes has 
today. Examination of the statutes and relevant decisions 
of this Court respecting statutory vagueness amply re­
futes Appellants’ contentions.

To start with it should probably be observed that the 
obvious reason for the current popularity of attacks upon 
disliked statutes on the ground of their being unconsti­
tutionally vague is that a plausible argument can almost 
always be made in support of such attacks. Most words, 
virtually all sentences, and certainly all statutory or con­
stitutional provisions, are to some extent vague and sus­
ceptible of differing interpretations (i.e. “ambiguous”) . 
Nowhere is this more true than in the very constitutional 
provisions which Appellants rely upon in making this at­
tack. What could be more vague than those Fourteenth 
Amendment terms “due process” and “equal protection?” 
Would any attorney be so rash as to say that these much 
debated terms establish clear cut and/or immutable 
standards? If all vagueness, uncertainty and ambiguity



13

were fatal to the validity of statutory enactments we 
would have no statutes, and both the federal and state 
constitutions themselves would also have to be declared 
too vague to stand.

Fortunately, this is not the case. The fact that a 
statute may require interpretation, that it may be diffi­
cult to interpret, or that it is susceptible of different 
interpretations, will not render it unconstitutional. If a 
statute is susceptible of any sensible construction at all, 
it is the duty of the courts to fill in such gaps as may 
exist and supply such interpretation and construction 
as may be required to save the law, with due regard 
being given to its purpose and the intent of the legis­
lature. See, e.g. 82 C.J.S. Statutes § 68(c), pp. 118-19. 
As stated by this Court in Screws v. United States, 325 
U.S. 91, 100 (1946):

“Yet if the Act falls by reason of vagueness so far 
V as due process of law is concerned, there would

' seem to be a similar lack of specificity when the 
, privileges and immunities clause * * * and the 

equal protection clause * * * of the Fourteenth 
Amendment are involved. Only if no construction 
can save the Act from this claim of unconstitution­
ality are we willing to reach that result.” (Italics 
added.)

We think that the statutes involved in the instant case 
do not even come close to the constitutional danger zone 
(i.e. such complete vagueness and uncertainty as would 
make it impossible for the Court to furnish any rational 
construction). Quite to the contrary the present statutes 
are of far more than average clarity (as statutes go) and 
really require little “judicial interpretation” at all.

Looking first to Ga. Code Ann. § 59-101, pertaining



14

to jury commissioners. Appellants say that the standards 
set forth therein respecting qualifications and eligibility 
are unconstitutionally vague, indefinite, and uncertain. 
The lack of any further specificity in Appellants’ orig­
inal complaint caused us at one point to wonder whether 
under their own theory, their complaint was itself so 
vague, uncertain and ambiguous as to cause any require­
ment that defendants respond to the point to be a denial 
of defendants’ right to defend themselves as guaranteed 
by the “due process” clause of the Fourteenth Amend­
ment. But we will pass this interesting question and pro­
ceed instead upon the assumption that the particular 
qualification complained of is that mentioned in the 
Jurisdictional Statement, which is the one directing the 
judge of the superior court, when exercising his discre­
tion regarding the selection of jury commissioners, to 
select “discreet” persons.

We find it somewhat difficult to understand why 
Appellants are unable to comprehend this word, which 
is a word of common usage in the English language, and 
contained in all standard dictionaries. A “discreet” per­
son is one who is possessed of good judgment or, in other 
words, prudent. See Webster’s Third New International 
Dictionary (3d Ed. 1961), p. 647. Surely this is not an 
undesirable qualification for a person selected by a judge 
to be a jury commissioner and it is hoped that the judge 
would attempt to fill such positions with the most 
prudent (i.e. discreet) persons available even in the ab­
sence of the statutory directive.

What Appellants really dislike, of course, is that the 
term, as used in the statute, calls for a value judgment 
on the part of the judge. But there is not yet any con-



15

stitutional requirement that appointive offices be filled 
by lottery, by computer or by precise objective standards 
capable of mathematical application. Somewhere along 
the line decisions must be made and discretion must be 
exercised. The latter, it is submitted, necessarily involves 
value judgments. We think this rule is as applicable to 
the appointment of county jury commissioners as it is 
to the appointment of Federal judges, who are permitted 
to hold their appointive offices, it may appropriately be 
noted, “during good behavior.” See 28 U.S.C. §§ 44, 
133, 134.

What we have said above respecting the attack upon 
Ga. Code Ann. § 59-101 would seem to be equally ap  
plicable to Appellants’ allegations respecting Ga. Code 
Ann. § 59-106 which refers to the compiling of a jury 
list from a cross-section of the “upright and intelligent” 
citizens of the county. The word “intelligent” surely 
needs no explanation. Clearly the village idiot can be 
kept off the jury list without offending the constitution. 
Nor can the word “upright” be said to pose any great 
mystery. As in the case of (but undoubtedly with greater 
specificity than) the phrase “during good behavior,” it 
relates to a person’s character and reputation.

As the Court is aware, the law permits men to be 
hanged or set free through testimony as to their general 
“reputation” in the neighborhood (and indeed pro­
hibits specifics to be used to further explain or illustrate 
the term). See 22A C.J.S. Criminal Law § 676; 32 C.J.S. 
Evidence § § 434, 436. Once again the real objection of 
Appellants is not one of uncertainty or vagueness, but is 
their dislike of the fact that any discretion at all (which 
as already pointed out necessarily involves value judg-



16

ments) exists in the compiling of the jury list. As in the 
case of jury commissioners the people of Georgia, speak­
ing through their legislature, disagree with Appellants. 
They think an exercise of judgment in the filling of a 
public office or position of public responsibility by ap­
pointment is wise and desirable. We are quite convinced 
that this universal practice^ is constitutional as well as 
wise.

Finally, Appellants also attack Ga. Code Ann. §§ 32- 
902, 32-902.1, 32-903 and 32-905, relating to county 
boards of education, as having “standards set forth 
therein” which violate the constitution because they are 
vague, uncertain and ambiguous. Again there were no 
specifics in their own vague, uncertain and ambiguous 
complaint as to what standards in these rather lengthy 
code provisions they complained of. In view of impossi­
bility of knowing what Appellants consider to be vague 
or unclear, we will avoid the one hundred pages or 
more which would be required to analyze each and every 
clause of the statutes and confine ourselves instead to the 
questions posed by the trial court during the initial 
hearing in the case. That court’s questions all related to 
the meaning of that clause of Ga. Code Ann. § 32-903 
(i.e. qualifications of school board members) which pro­
vides:

“. . . they shall elect men of good moral character, 
who shall have at least a fair knowledge of the ele-

^At pp. 12-13 of their Jurisdictional Statement, Appellants list 
juror character qualifications of some twenty states. Concerning 
many appointive offices, of course, the discretion of the appoint­
ing authority is not nearly so limited by statute and such dis­
cretion is consequently far broader.



17

mentary branches of an Engish education and be
favorable to the common school system.”

In light of what has already been said regarding the 
attacks on Ga. Code Ann. §§ 59-101 and 59-106, the 
initial clause (i.e. “good moral character”) poses no 
problem. It simply calls for a value judgment regarding 
the character of a prospective appointee to the board; 
It is no more vague than “general reputation in the com­
munity” which as already pointed out can determine 
whether an accused shall be hanged or set free, is at least 
as clear as the terms “discreet,” “upright” and “intelli­
gent,” and with the greatest respect we submit it is 
somewhat clearer than the “during good behavior” 
which the distinguished justices of this honorable Court 
are allowed to sit under Art. Ill, Section I of the United 
States Constitution. Once again it can be said that there 
is really no question of vagueness here, but only com­
plaint of the fact that the language calls for a value 
judgment. As already pointed out, this not only is not a 
constitutional defect but to the contrary represents the 
wisdom of the ages as well as presently sound public 
policy of obtaining the best persons available for public 
office.

The second clause (i.e. “at least a fair knowledge of 
the elementary branches of an English education”) is a 
clause which appeared to be somewhat troublesome to 
the court below and to our way of thinking is perhaps 
the sole clause which may legitimately be said to require 
something more than minuscule judicial interpretation. 
In its historical context it would appear that the term 
“English education,” which appeared in Article VII, 
Section I, Paragraph I of the Constitution of the State



18

of Georgia of 1877 respecting the authorization of taxa­
tion by the State for:

. . educational purposes in instructing children 
in the elementary branches of an English education 
only,”

and which in 1920 was replaced by the broader phrase 
“for educational purposes” (now in the equivalent rev­
enue provision of the 1945 Constitution, see Art. VII, 
Sec. II, Par. I; Ga. Code Ann. § 2-5501), was not re­
moved from Ga. Code Ann. § 32-903, which was orig­
inally enacted in 1919. See Ga. Laws, 1919, pp. 288, 321. 
While we have been unable to locate any Georgia deci­
sion interpreting the phrase “English education” it does 
appear that the term is one which was of popular usage 
in the earlier days of public education. Thus in Powell 
V. Board of Education, 97 111. 375, 380 (1851), the Su­
preme Court of Illinois declared:

. . it must be conceded the education to be 
aSorded to the children of the State . . .  is what is 
popularly understood to be an ‘English education.’ 
But what is an ‘English education.’ Mathematics, 
geography, geology, and other sciences taught in the 
schools are no more a part of an English education 
than they are of a German education. An education 
acquired through the medium of the English lan­
guage is an English education; but if the same 
branches were taught in the German language it 
would be a German education. It is, therefore, the 
language employed as a medium of instruction that 
gives the distinctive character to the education, 
whether English, German or French, and not the 
particular branches of learning studied.”

Under this construction, coupled with the fact that 
“elementary branches” manifestly has reference to the



19

branches or subjects taught in the elementaiy (or less 
than high school) grades, see 78 C.J.S. Schools and 
School Districts § 1, p. 608, we submit that the most 
reasonable construction and interpretation of the quali­
fication “at least a fair knowledge of the elementary 
branches of an English education” would be a level of 
learning consisting of or equivalent to at least an ele­
mentary school education in the English language 
(which presumably would include the ability to read 
and write in the English language).

In any event such language, whether construed in this 
manner by the Court or whether construed as a lesser 
requirement of a bare ability to read and write in English, 
is susceptible of plausible construction and hence can­
not properly be held to be unconstitutionally vague. 
Screws v. United States, 325 U.S. 91, 100 (1945); 82 
C.J.S. Statutes § 68 (c), pp. 118-19.

The final clause about which the United States Dis­
trict Court asked questions was the statutory directive 
that persons selected as members of the county board of 
education “be favorable to the common school system.” 
We pointed out in that court that the term “common 
school system” is generally understood to mean the “pub­
lic school system” consisting of public elementary and 
high schools, as contradistinguished from colleges, uni­
versities and other institutions of higher learning as 
well as from private or parochial schools. See e.g. 78 
C.J.S. Schools and School Districts § 1, pp. 606-7. To 
favor this system simply means to be well disposed 
toward its maintenance and perpetuation. To illustrate 
with the reverse side of the coin, we think this qualifica­
tion means that a person who wishes to abolish public



20

schools and revert to a system whereunder education is 
furnished, if at all, only by churches or other private 
organizations, would not be qualified to be a member 
of a county school board. A county school board mem­
ber must, in other words, be in favor of maintaining a 
system of education at public expense for all eligible 
children of the county who desire to avail themselves 
of the same. While we think that this statutory clause 
really needs little in the way of judicial interpretation, 
it can at the very least be said that as all of the other 
statutes discussed herein, it is susceptible of construc­
tion and hence can not be said to be unconstitutionally 
vague.

It is respectfully submitted that Appellants’ attacks 
of unconstitutional vagueness and ambiguity against the 
State laws in question are as far-fetched as their conten­
tion that said laws are racially discriminatory on their 
face.

(b) The subsidiary issue of discrimination against 
individuals who are not “freeholders’̂  respect­
ing membership on county boards of education 
is not properly raised, and in any event fails to 
present a substantial federal question.

Article VIII, Section V, Paragraph I of the Constitu­
tion of the State of Georgia of 1945 (Ga. Code Ann. 
§ 2-6801), as well as Ga. Code Ann. § 32-902, provides 
that members of county boards of education shall be 
“freeholders.”  ̂ Appellants attack this provision under 
the equal protection clause of the Fourteenth Amend-

^Black’s Law Dictionary (4th Ed. 1951) p. 793 defines a “free­
holder” as one having title to realty either of inheritance or for 
life.



21

merit upon the theory that exclusion of non-freeholders 
from this county political office constitutes an arbitrary 
and unreasonable classification.

It would seem in the first instance that Calvin Turner 
is wholly without standing to raise this issue either in his 
own right or as a representative of any conjectural class 
of non-freeholders for the simple reason that he testified 
in open court that he in fact did own real property in 
Taliaferro County. It would also seem clear from Appel­
lants’ concession in the district court that many other 
Negroes own property in Taliaferro County, that any 
attempt to inject the race issue into this particular elig­
ibility requirement is truly tilting at windmills. Surely 
any Negro aspirant for the office of county school board 
could manage to obtain a conveyance from some prop­
erty owner of the single square inch of land required 
to meet this particular requirement. In point of fact 
Appellants, in raising this wholly academic question, are 
clearly seeking to obtain an advisory opinion of the 
Court. There is neither testimony nor any other evidence 
in the record of anyone, black or white, either in Talia­
ferro County or anywhere else in Georgia, having been 
excluded from membership on a county board of edu­
cation by virtue of the “freeholder” requirement, much 
less any evidence of the qualification being utilized for 
purposes of racial discrimination. This sham issue pre­
sents neither a case nor a controversy within the mean­
ing of Article III, Section II of the United States Con­
stitution, much less a substantial federal question.

Finally, it may be noted that even if this issue had 
been properly raised by someone who had been deprived 
of a public office. Appellants position is contrary to law.



22

In the absence of any express prohibition in the State 
Constitution the courts, so far as we have been able to 
determine, have uniformly upheld property qualifica­
tions for political office. See e.g. Becraft v. Strohel, 287 
N.Y.S. 22, 29 (1936), aff’d. 274 N.Y. 677, 10 N.E.2d 
560 (1937) ; State v. McAllister, 38 W. Va. 485, 18 S.E. 
770, 773 (1893) . And in Vought v. Wisconsin, 217 U.S. 
590 (1910), where a Wisconsin statute requiring jury 
commissioners to be “freeholders” was attacked as a 
denial of “due process” and “equal protection” by in­
dividuals indicted by grand jurors who had in turn been 
appointed by such freeholder jury commissioners, this 
Court thought the federal question so clearly without 
merit as to justify dismissal on jurisdictional grounds. 
While the desirability and wisdom of the “freeholder” 
requirement may indeed be open to question, we think 
that as far as the constitutionality of the same is con­
cerned, the compilers of the law in 42 Am. Jur. Public 
Officers § 49, were entirely correct when they said:

“Undoubtedly a legislature has power to impose
a property qualification upon office holders.”



23

CONCLUSION
For the reasons stated herein the instant appeal should 

be dismissed for want of jurisdiction, or, in the alter­
native the judgment of the United States District Court 
for the Southern District of Georgia sought to be re­
viewed should be affirmed on the ground that the ques­
tions upon which the decision below depended were 
fully explored, correctly answered, and do not warrant 
or justify further argument.

Respectfully submitted.

Arthur K. Bolton 
Attorney General

Please address all 
communications to: 
Attention:
Alfred L. Evans, J r. 
Asst. Attorney General 
132 State Judicial Bldg. 
40 Capitol Square 
Atlanta, Georgia 30334

Alfred L. Evans, > •  
Assistant Attorney General

J. Lee Perry
Assistant Attorney General