Turner v. Fouche Appellants' Brief
Public Court Documents
October 7, 1968
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Brief Collection, LDF Court Filings. Turner v. Fouche Appellants' Brief, 1968. 49d9e702-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d971fff7-7e19-4b2c-9679-b717443a8fdc/turner-v-fouche-appellants-brief. Accessed May 02, 2025.
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I n t h e
OInurt of llnttjefn t̂at̂ o
October Term, 1968
No. 842
Calvin Turner, et al.,
W. W. F ouche, et al.,
Appellants,
Appellees.
ON a p pe a l from t h e u n it e d st a te s distric t court
FOR THE SOUTHERN DISTRICT OF GEORGIA
APPELLANTS’ BRIEF
Jack Greenberg
Michael Meltsner
10 Columbus Circle
New York, New York
H oward Moore, J r.
P eter R indskopf
859^ Hunter Street, N.W.
Atlanta, Georgia
Attorneys for Appellants
Norman J. Chachkin
Of Counsel
TABLE OF CONTENTS
PAGE
Opinion Below ................................................................. i-
Jnrisdiction ...................................................................... 2
Constitutional and Statutory Provisions Involved ..... 3
Questions Presented......................................................... 4
Statement .......................................................................... 4
A. Initiation of This Litigation ............................. 4
B. District Court Proceedings ............................... 5
C. Background of This Litigation......................... 8
D. The Selection of Jurors ....................................... 14
E. Selection and Duties of School Board Members 20
Summary of Argum ent...................................................... 23
A e g u m e n t
I. Statutory Standards Which Govern Georgia
Jury Selection Are Unconstitutionally Vague
and Permit Exclusion of Negroes From Jury
Service in Violation of the Fourteenth Amend
ment to the Constitiition of the United States .. 25
II. Georgia Constitutional and Statutory Provi
sions for Selection of School Board Members
Operate in Taliaferro County to Dilute Negro
Participation in the Selection of Board Mem
bers in Violation of the Thirteenth, Fourteenth,
and Fifteenth Amendments to the Constitution
of the United S ta te s ............................................ 38
u
PAGE
III. Georgia’s Prohibition of Membership on Connty
Boards of Education to Non-Freeholders Vio
lates the Fourteenth Amendment...................... 48
Conclusion..................................................................................... 55
A ppendix
Constitutional and Statutory Provisions Involved la
Table oe Cases
Abington School District v. Schempp, 374 U. S. 203
(1963) ............................................................................ 54-55
Allen V. State Board of Elections,----- U. S . ------ , 37
U. S. L. Week 4168 (March 3, 1969)............................ 41
Anderson v. Georgia, 390 U. S. 206 (1968) .................. 25
Anderson v. Martin, 375 U. S. 399 (1964) ............ ......... 50
Aptheker v. Secretary of State, 378 U. S. 500 (1964) .... 52
Baggett V. Bullitt, 377 U. S. 360 (1964).......................... 34
Baker v. Carr, 369 U. S. 186 (1962) ............................. 41,49
Board of Public Instruction of Duval Co., Fla. v. Brax
ton, 326 F. 2d 616 (5th Cir., 1964) ............................. 46
Board of Supervisors v. Dudley, 252 F. 2d 373 (5th Cir.
1958) .............................................................................. 34
Bond V. Floyd, 385 U. S. 116 (1966) ............................. 49, 50
Bostick V. South Carolina, 386 U. S. 479 (1967) ........... 25
Brown v. Allen, 344 U. S. 433 (1953) ........................... 36-37
Brown v. Board of Education, 347 U. S. 483 (1954) .... 47
Brunson v. North Carolina, 333 U. S. 851 (1948) ........... 37
Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952) .............. 34
Carr v. Montgomery County (Ala.) Board of Educa
tion, 253 F. Supp. 306 (M. D. Ala. 1966) ................. 46
Ill
PAGE
Cassell V. Texas, 339 U. S. 282 (1950) ......................... 37
Cipriano v. City of Houma, 286 F. Supp. 823 (E. D. La.
1968), probable jurisdiction noted, 37 U. S. L. Week
3275 (Jan. 14, 1969), 0. T. 1968, No. 705 .................. 51
Cline V. Frink Dairy Co., 274 U. S. 445 (1927) .............. 34
Cobb V. Georgia, 389 U. S. 12 (1967) ............................. 25
Colegrove v. Green, 328 U. S. 549 (1946) ...................... 41
Commercial Pictures Corp. v. Regents of University of
New York reported with Superior Films, Inc. v. De
partment of Education, 364 U. S. 587 (1954) .......... 34
Davis V. Mann, 377 U. S. 678 (1964) ............................. 41
Davis V. Schnell, 81 F. Supp. 872 (S. D. Ala.), aff’d per
curiam, 336 U. S. 933 (1949) .....................................34,42
Dowell V. School Board of Oklahoma City, 244 F. Supp.
971 (W. D. Okla., 1965), atf’d 375 F. 2d 158 (10th Cir.
1967), cert, den., 387 U. S. 931 (1967) ...................... 46
Edwards v. South Carolina, 372 U. S. 229 (1963) .......34, 52
Giaccio v. Pennsylvania, 383 U. S. 339 (1966) .............. 34
Gomillion v. Lightfoot, 364 U. S. 339 (1960) .......36,40,41,
42, 43,44
Green v. New Kent County Board of Education, 391
U. S. 430 (1968) ........................................................... 46
Griffin v. Illinois, 351 U. S. 12 (1956) ........................... 49
Griffin v. School Board of Prince Edward County, Va.,
377 U. S. 218 (1964) ...................................................... 46
Griswold v. Connecticut, 381 U. S. 479 (1965) ........... 52
Hadnott v. Amos,----- U. S .------ , 37 U. S. L. Week 4256
(March 25, 1969) .................................................40,42,43
Hague V. C. I. 0., 307 U. S. 496 (1939) ......................... 26
IV
PAGE
Harper v. Virginia Board of Elections, 383 U. S. 663
(1966) ................................................... 24,43,49,50,52,53
Herndon v. Lowry, 301 H. S. 242 (1937) ...................... 34
Hill V. Texas, 316 U. S. 400 (1942) ................... .............. 32
Jones V. Georgia, 389 IT. S. 24 (1967) ............................. 25
Kelly V. Altlieiiner, 378 F. 2d 483 (8tli Cir. 1967) ....... 46
Keyishian v. Board of Eegents, 385 IJ. S. 589 (1967) .... 52
Kramer v. Union Free School District No. 15, 282 F.
Supp. 70 (E. D, N. Y. 1968) ........... ......................... 51, 54
Landes v. Town of Hempstead, 231 N. E. 2d 120, 20
N. Y. 2d 417, 284 N. Y. S. 2d 417 (1967) ..................51,53
Lane v. Wilson, 307 U. S. 268 (1939) ....................42,43,44
Louisiana v. United States, 380 U. S. 145 (1965) ....26, 30, 34,
35, 37,45
MacDougall v. Green, 335 U. S. 281 (1948) .................. 39
McLaughlin v. Florida, 379 U. S. 184 (1964) ................ 53
N.A.A.C.P. V. Alabama, 377 U. S. 288 (1964) ................ 52
N.A.A.C.P. V. Button, 371 U. S. 415 (1963) .............. 51,52
Neal V. Delaware, 103 U. S. 370 (1881) .......................... 37
Niemotko v. Maryland, 340 U. S. 268 (1951) ................ 26
Nixon V. Herndon, 273 U. S. 536 (1927) .......................... 40
N. L. E. B. V. Newport News Shipbuilding & Drydock
Co., 308 U. S. 241 (1939) .............................................. 45
Pierce v. Ossining, 292 F. Supp. 113 (S. D. N. Y. 1968) .. 51
Eahinowitz v. United States, 366 F. 2d 34 (5th Cir. en
banc 1966) .................................................................... 31
PAGE
Reynolds v. Sims, 377 U. S. 533 (1964) .......... 24,39,40,41
Rice V. Elmore, 165 F. 2d 387 (4tli Cir. 1948) .............. 43
Sailors v. Board of Education of Kent County, 387
U. S. 105 (1967) .................. -.............................. 39,40,42
Schine Chain Theatres v. United States, 334 U. S.
110 (1948) ...................................................................... 45
Schneider v. State, 308 U. S. 147 (1939) ...................... 52
Shelley v. Kraemer, 334 U. S. 1 (1948) ......................40,43
Shelton v. Tucker, 364 U. S. 479 (1960) ......................... 52
Sherbert v. Verner, 374 U. S. 398 (1963) ..................51,52
Sims V. Baggett, 247 F. Supp. 96 (M. D. Ala.
1965) ...................................................................... 39,42,44
Sims V. Georgia, 389 U. S. 404 (1967) ......................... 25
Slaughter House Cases, 83 U. S. 36 (1873) .................. 43
Smith V. Alhvright, 321 U. S. 649 (1944) ......................42,44
Smith V. Bennett, 365 U. S. 708 (1961) ......................... 49
Smith V. Paris, 257 F. Supp. 901 (M. D. Ala. N. D.
1966) aff’d 386 F. 2d 979 (5th Cir. 1967) .................. 42
Smith V. Texas, 311 U. S. 128 (1940) ......................... 35
South Carolina v. Katzenbach, 383 U. S. 301 (1966) 34
State ex rel. Mitchell v. Heath, 34 Mo. 226, 132 S. W.
2d 1001 (1939) ............................................................... 53
Staub V. City of Baxley, 355 U. S. 313 (1958) .............. 34
Sullivan v. Georgia, 390 U. S. 410 (1968) ...................... 25
Terry v. Adams, 345 U. S. 461 (1953) .............. 24,42, 43, 46
Thomas v. Collins, 323 U. S. 516 (1945) ...................... 52
Turner v. Goolsby, 255 F. Supp. 724 (S. D. Ga. 1965;
supp. opinion 1966) .....................................1, 9,11,12,47
United States v. Atkins, 323 F. 2d 733 (5th Cir. 1963) .. 34
United States v. Classic, 313 U. S. 299 (1943) .............. 50
VI
PAGE
United States v. L. Cohen Grocery Co., 255 U. S. 81
(1921) ............................................................................ 34
United States v. Logue, 344 F. 2d 290 (5th Cir. 1965) - 46
United States v. Mississippi, 380 U. S. 128 (1965) ....... 30
United States v. National Lead Co., 332 U. S. 319
(1947) ............................................................................ 45
United States v. Scarborough, 348 F. 2d 168 (5th Cir.
1965) ............................................................................. 46
United States v. Standard Oil Co., 221 U. S. 1 (1910) 45
West Virginia State Bd. of Educ. v. Barnette, 319 U. S.
624 (1943) .................................................................... 51-52
Wheeler v. Durham City Board of Education, 346 F.
2d 768 (4th Cir. 1965) ................................................ 46
Whitus V. Georgia, 385 U. S. 545 (1967) .......... 15, 25, 26, 27
Winters v. New York, 333 U. S. 507 (1948) ................. 34
Witcher v. Peyton, 405 F. 2d 725 (4th Cir. 1969) ....... 33
WMCA V. Lomenzo, 377 U. S. 633 (1964) .................. 41
Yick Wo V. Hopkins, 118 U. S. 356 (1886) ................. 26
T able of S tate C o n st it u t io n a l a n d
S ta tu to ry P ro visio ns
Ga. Code Ann. §2—6801, Art. VIII, §V, para. I. of
Georgia Constitution of 1945 ............................. 5, 6, 20, 48
Ga. Code Ann. §2—6802; Art. VIII, §V, para. II of the
Georgia Constitution of 1945 ..................................... 20
Ga. Code Ann. §24—2501 ................................................ 14
Ga. Code Ann. §32—902 ........................................... 5, 6, 48
Ga. Code Ann. §32—902.1 .................................... 5, 6, 20,48
Ga. Code Ann. §32—903 ............................................ 5,6,20
Ga. Code Ann. §32—905 ............................................ 5, 6
Ga. Code Ann. §32—1116................................................ 54
V ll
PAGE
Ga. Code Ann. §32—1118 ................................................ 53
Ga. Code Ann. §32—1127 ................................................ 53
Ga. Code Ann. §59—101 ........................................ 5, 6,14, 26
Ga. Code Ann. §59—106 ..................5, 6,15, 23, 26, 27, 29, 31
Ga. Code Ann. §59—201 ................................................ 15
Ga. Code Ann. §59—202 ......... ........................................ 15
Ga. Code Ann. §59—306 .................................................. 15
Ga. Code Ann. §59—308 .................................................. 15
Ga. Code Ann. §59—310.................................................. 16
Ga. Code Ann. §59—311 .................................................. 16
Ga. Code Ann. §59—314 .................................................. 16
Ga. Code Ann. §59—315 .................................................. 16
Ga. Code Ann. §59—401 .................................................. 16
Ga. Code Ann. §92—6307 ................................................ 15
O t h e r A u t h o r it ie s
28 Am. Jur. 2d, Estates §8 ............................................ 48
Atlanta Journal, Feb. 2, 1969 ........................................ 20
Circular No. 6; Educational Research Service (1967) 21
Hearings on S. 1318 before the Subcomm. on Improve
ments in Judicial Machinery of the Senate Comm,
on the Judiciary, 90th Cong., 1st Sess. (1967) ....... 30
Kuhn, “Jury Discrimination: The Next Phase,” 41
U. S. C. Law Rev. 235 (1968) ............................. 30,31,34
Sjunposium on the Griswold Case and the Right of
Privacy, 64 Mich. L. Rev. 197 (1965) ....................... 52
The Congress, The Court and Jury Selection, 52 Va.
L. Rev. 1069 (1966) ..................................................... 30
The Forty-Eight State School Systems (1949) .......... 21
U. S. Code Congressional and Administrative News,
90th Cong., 2nd Sess................................................... 31
I n t h e
Ol0urt sti Btsd̂ s
October Teem, 1968
No. 842
Calvin Turner, et al.,
— V.—
W. W. F ouche, et al.,
Appellants,
Appellees.
ON APPEAL FEOai THE UNITED STATES DISTRICT COURT
FOE THE SOUTHERN DISTRICT OF GEORGIA
APPELLANTS’ BRIEF
Opinion Below
The opinion of the court below is reported at 290 F.
Supp. 648 (S. D. Ga. 1968) and is set forth in the appen
dix, pp. 397-405d Earlier litigation involving several of
the parties is reported as Turner v. Goolsby, 255 F. Supp.
724 (S. D. Ga. 1965; supp. opinion, 1966).
̂Hereinafter cited (A. ).
Jurisdiction
This is an action for injunctive and declaratory relief
in which jurisdiction of the district court was invoked
under 28 U. S. C. '^§1331, 1343, 2201-02; 42 U. S. C.
^§1981, 1983, 1988, 1994, 2000d and 2000e; and the Fifth,
Ninth, Thirteenth, Fourteenth and Fifteenth Amendments.
The complaint sought, inter alia, to enjoin enforcement
and operation of Georgia’s constitutional and statutory
scheme for the selection of jurors and county boards of
education as in violation of the Constitution of the United
States. A statutory three-judge court Avas convened pur
suant to 28 U. S. C. §§2281, 2284 (A. 18).
The three-judge court determined that it was properly
convened but found “no merit in the three-judge District
Court questions presented” (A. 403). A final judgment and
decree was entered on September 19, 1968 (A. 406-407).
Timely notice of appeal to this Court was filed in the
court beloAv on October 14, 1968. On December 2, 1968,
J-Ir. Justice Black extended the time for filing a Jurisdic
tional Statement to, and including, February 8, 1969. On
February 24, 1969, this Court noted probable jurisdiction
(A. 408). Jurisdiction of this Court is invoked pursuant
to 28 U. S. C. §1253.
Constitutional and Statutory Provisions Involved
This action involves the following Georgia constitutional
and statutory Provisions, which are set forth in an ap
pendix infra pp. la - l la :
Article VIII, Section V, paragraph I, of the Consti
tution of the State of Georgia of 1945; Ga. Code Ann.,
§2-6801.
Article VIII, Section V, paragraph II, of the Consti
tution of the State of Georgia of 1945; Ga. Code Ann.,
§2-6802.
Ga. Code Ann. §23-802
Ga. Code Ann. §32-901
Ga. Code Ann. §32-902
Ga. Code Ann. §32-902.1
Ga. Code Ann. §32-903
Ga. Code Ann. §32-905
Ga. Code Ann. i§32-908
Ga. Code Ann. §32-909
Ga. Code Ann. §32-1101
Ga. Code Ann. §32-1118
Ga. Code Ann. §32-1127
Ga. Code Ann. §59-101
Ga. Code Ann. §59-106
Ga. Code Ann. §59-202
Ga. Code Ann. §59-203
Ga. Code Ann. §59-318
Ga. Code Ann. §59-319
This action also involves the Thirteenth, Fourteenth,
and Fifteenth
United States.
Amendments to the Constitution of the
Questions Presented
1. Whether statutory standards which govern Georgia
jury selection are unconstitutionally vague and permit the
arbitrary exclusion of Negroes from jury service in viola
tion of the Fourteenth Amendment to the Constitution of
the United States ?
2. Whether the Georgia system of selection of school
board members by the county grand jury operates to dilute
Negro participation in the selection of the board in viola
tion of the Thirteenth, Fourteenth and Fifteenth Amend
ments ?
3. Whether Georgia’s prohibition of service on school
boards to non-freeholders violates the Fourteenth Amend
ment?
Statement
A. Initiation of This Litigation
On November 14, 1967, Calvin Turner, a registered
Negro voter residing in Taliaferro County, Georgia, and
his daughter, a student in the public schools of the county,
brought this action against members of the county board
of education, jury commission, and representative grand
jurors. A Negro father of six school age children, ŵ ho is
not a freeholder, Avas permitted to intervene as a plaintiff
(A. 72, 73). The complaint alleged that appellants, and
others similarly situated, were denied rights guaranteed
by the federal Constitution by the operation of Georgia
statutory and constitutional provisions which authorize the
selection of school board members and jurors.
Appellants contended, inter alia, that: (1) they had been
denied an opportunity to serve as jury commissioners,
grand jurors, and traverse jurors on account of race (com
plaint paras. 11(c), 11(d)); (2) they had been denied on
account of race an opportunity to participate in the process
of selecting the officials who administer the public schools
of Taliaferro County (complaint, para. 11(a), (h)); and
(3) they had been denied on account of poverty, and the
requirement that school board members be freeholders,
the opportunity to actually serve as board members (com
plaint 11(b)) (A. 7-14).
The complaint sought injunctive and declaratory relief
as to the offending provisions of state law: Ga. Code Ann.
§§2-6801; 32-902, 902.1, 903, 905; 59-101, 106; that mem
bership on the board of education and jury commission
be declared vacant; that a receiver be appointed to operate
the public schools pending selection of a constitutionally
acceptable board; that a special master select members
of the grand and petit juries; and that ancillary damages
be awarded (A. 16-17). Because appellants sought injunc
tive relief restraining the enforcement of state statutes
and constitutional provisions, a three judge court was em
panelled and the State of Georgia permitted to intervene
(A. 18, 65).
B. D istrict Court Proceedings
The district court held two hearings before it rendered
its decision. At the first, January 23, 1968, the court found
that the
evidence indicated and the court announced then and
now so finds that Negroes were being systematically
excluded from the grand juries through token inclu
sion. . . . The grand jury situation was such that
Negroes had little chance of appointment to the school
board (A. 399).
Counsel for the appellees were directed “to familiarize
defendants with the provisions of law relating to the pro
hibition against systematically excluding Negroes from the
jury system” (A. 399). Appellees were also informed by
the court that it would be appropriate if two Negroes were
appointed to the school board (A. 252).
At the second hearing, February 23, 1968, the court was
informed that the county jury list had been revised in
light of the court’s oral pronouncement that the master
list was illegally composed, and that on February 16, 1968,
the county grand jury had confirmed one Negro and one
white man to fill two school board vacancies (A. 265-69).
On August 5, 1968, the district court entered its opinion,
stating the issues as follows;
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 con
tended that Art. VII [sic], §V, U of the Constitution
of the State of Georgia 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 Thirteenth
Amendment, both facially and as applied by reason of
the systematic and long continued exclusion of Ne
groes and non-freeholders as members of the Board
of Education 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 unconstitutionality in ap
plication is asserted on the basis of systematic exclu
sion of members of the Negro race from service as
jury conunissioner. Unconstitutionality is claimed also
by reason of the alleged uncertainty, indefmiteness,
and vagueness of the standards set forth in each of
the statutes (A. 398).
The district court concluded that the grand jury list,
“as revised”, is not unconstitutional and that state consti
tutional provisions and statutes governing jury and school
board selection are not unconstitutional on their face or as
applied: “The facts showed systematic exclusion in the
administration of the grand jury system prior to the revi
sion but this resulted from the administration of the system
and not from the constitutional provision and statutes
under attack” (A. 403).
The court also concluded that the requirement that mem
bers of the school board be freeholders is not unconstitu
tional :
“There was no evidence to indicate that such a quali
fication resulted in an invidious discrimination against
any particular segment of the community, based on
race or otherwise” (A. 403).
On September 19, 1968, the court entered a final judg
ment, in conformance with its opinion, upholding the va
lidity of all the challenged state statutes and constitutional
8
provisions and. denied relief/ other than to enjoin jury
commissioners from “systematically excluding Negroes
from the grand jury system” (A. 406).
C. Background of This Litigation
Consideration of appellants’ claims requires some fa
miliarity with general characteristics of Taliaferro County
and earlier litigation between several of the parties.
According to the 1960 Census county population ;
Number Percent
White 1,273 37.8
Negro 2,096 62.2
White (over 21) 877 47.3
Negro (over 21) 979 52.7
White (over 18)“ 917 46.0
Negro (over 18) 1,073 54.0
WTiile the exact number of registered voters of each
race in the county was not known it was generally agreed
—and the district court found—that Negroes and whites
each constituted 50% of those registered (A. 368-69, 390,
399).
* The court declined in its discretion to consider a single-judge
claim for ancillary money damages in the amount of $500,000 to
compensate plaintiffs for past deprivations and denials of federal
rights. ̂ A prayer for attorney’s fees was denied. Earlier the court
had dismissed the complaint as to three defendants named indi
vidually as representative grand jurors (A. 71).
® 1960 Census of population, Table 25, pp. 12-83, Table 27, pp
12-130, and Table 28, pp. 12-148.
“ Of the 910 persons of school age in the county, 15.2% were
white males; 13.2% white females; 39.6% non-white males and
32.1% non-white females. Ibid.
All of the teachers and children who attend public
schools of the county are Negro although the superinten
dent is white (A. 21, 38-39; 24, 47, 52). The five-man
county school hoard had not had a Negro member in the
memory of board members until one was appointed as a
consequence of this litigation (A. 23, 46); none of the
white board members themselves had children attending
the public schools (A. 23, 47, 20, 38). The county jury
commission has been composed of whites for at least the
last 50 years (A. 20, 38).
In 1965, Negro citizens of Taliaferro County, including
appellant Turner, brought an action in the district court
against the circuit solicitor, county sheriff, county attorney,
superintendent of schools, and county board of education,
alleging, in summary, that by misuse of their offices and
by lodging unfounded criminal charges they had conspired
to deny the rights of county Negroes to free speech and to
a desegregated education. A three-judge court was con
vened and found that a public assembly protesting segre
gation had “set off a chain of events resulting in a flagrant
unconstitutional application of the statute proscribing the
disturbance of divine worship.” Turner v. Goolsby, 255 F.
Supp. 724, 727 (S. D. Ga. 1965). The court also described
the tactics emploj^ed by whites to avoid desegregation of
the schools:
There are onlj ̂ two schools in the county; Murden
which is populated by Negroes, and Alexander Steph
ens Institute which was populated by whites during
the last school term. It appears without dispute that
Alexander Stephens Institute has been closed since
the beginning of this school term on or about Sep
tember 1st, and that all white children in Taliaferro
10
County are attending school in adjoining counties
with most being transported on Taliaferro County
school buses. The role that the school superintendent
and the school board are alleged to have played in
the conspiracy is to have secretly and covertly ar
ranged for all the white children to leave the county
for school in other counties so as to eliminate the only
white school available to 87 Negro children who sought
transfers to a desegregated school. The transfers were
sought pursuant to a plan of desegregation filed with
the Health, Education and Welfare Department. The
transfer applications of these Negro students had
never, up until the time of hearing, been considered
by the superintendent and the school board. Instead,
the school superintendent concluded that some of the
applications for transfer were not bona fide and there
upon called upon the school board attorney, defendant
Richards, to conduct an investigation as to whether
some of the applications were forged . . .
At any rate, Mr. Richards took over the investiga
tion from this point forward. And it must be noted
in considering this phase of the case that the form of
application for transfer was illegal in the light of
several opinions of this court that notarization of the
signature of the applicant or of the parents or guard
ian may not be required [citing cases].
Defendant Richards obtained what he considered to
be sufficient evidence to have Plaintiff Calvin Turner,
a former teacher in the Negro school of Taliaferro
County, indicted for forgery. We view that evidence
with considerable scepticism in the light of the illegal
transfer applications and other evidence submitted at
the hearing . . .
11
There was some evidence that the unrest on the part
of the Negro plaintiffs stemmed in part from the fact
that the superintendent of schools refused their re
quest for a gymnasium or for use of the only school
gymnasium in the county which was assigned to the
white school. There was some evidence relating to
the refusal to rehire several Negro school teachers
but this was not developed to the point of showing
that this resulted from the alleged conspiracy (255
F. Supp. at 727, 28).
The court determined that the white school superin
tendent “with at least the knowledge, if not the help, of
tlie school board” {Id. at 728) knew that the white schools
would he closed. Negroes, however, were not advised.
The decision “if not kept secret, was at least not pub
licized” and “The superintendent arranged during the
month of August for her own son to transfer” to a school
in another county {Ibid.). Although Negro transfer appli
cations had been refused, white applications to attend
school in adjoining counties were granted and Taliaferro
piihlic school buses used to transport them {Ibid.).
In response to these facts, the court placed the school
system in receivership and appointed the state superin
tendent of schools as receiver. He was instructed to sub
mit a plan (i) to end the illegal expenditure of public
funds use to transport whites to adjoining county schools
and (ii) to grant the right of 87 Negro applicants for
transfer to adjoining counties where white children had
been transferred {Id. at 730). The solicitor, county sheriff
and county attorney were enjoined from prosecuting
Negroes including appellant Turner under “spurious”
12
indictments for disturbing divine worship, as well as on per
jury and forgery charges. The court also enjoined plain
tiffs from disturbing schools and interfering with school
buses carrying students to adjoining counties (Ibid.).^
The formerly white school was ultimately reopened as an
elementary school and the formerly Negro school as a
high school {Id. at 731-34), but white children who'had left
the public schools of the county, rather than attend them
on a desegregated basis, never returned. They either a t
tended a newly created private school or continued to
attend school in other counties (A. 47-9, 51-2, 354-59, 397).®
At this time, Negro parents believed that they could not
alter continued operation of a segregated school system,
and that the white school board, several of whose present
members Avere also serving in 1965, was hostile to the needs
and desires of the students actually attending the public
schools (A. 214-217). Kepeated attempts by appellant
Turner and members of the Voters League, a civic group,
to appear at school board meetings Avere unsuccessful.
The time of scheduled meetings Avas changed Avithout
public notice, contrary to law (A. 343-47; infra pp. 5a, Ga)"
' On May 20, 1966, the court entered a supplementary opinion
in which it granted the receiver’s motion for discharge after con
cluding that Negro children who Avished to attend school in ad
joining counties did so and that adjoining counties had given
notice they would take no children, Avhite or Negro, for the school
term 1966-67. Administration of the schools Avas returned to the
Taliaferro board of education.
® During the 1966-67 term, there were 458 Negro children in th4
public school system and 72 white children attending a local priA'ate
school.
'A t the second hearing, appellees admitted that timely notice
of the schedule change had not been published but also alleged,
throAigh the introduction of hearsay evidence, that such failure
was inadvertent (A. 345-346).
13
and the time also could not he determined despite attempts
to obtain information from the hoard chairman (A. 188-
90, 206-07). llTien reached by phone his attitude was
brusque and unhelpful (A. 210-11). A registered letter
sent to him went unanswered (A. 188-89).
One ;^arent, Mrs. Mary Allen, told the district court her
experience with the school system. She 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 by the principal: “Miss
Hadden, discontinue this class until the parents (sic)
leave” (A. 225). Mrs. Allen subsequently asked to be
allowed to organize a parent-teacher association in order
to “have some kind of communication with the teacher”
(A. 229). The principal of the high school informed her
that this could not be done because the superintendent
had refused permission (Ibid.). When a group of parents
attempted to appeal that decision, and present other griev
ances, the board abruptly adjourned a meeting without
responding to any of the complaints. The course of the
meeting was described at tr ia l:
“Judge Bell: How long did you stay in there?
The W itness: About ten minutes.
Judge Bell: And then they moved that 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?
14
The Witness: No answer.
Judge Bell: No answer?
The Witness: No sir.
Judge Bell: Have you had one since then?
The Witness: No, sir” (A. 233).^
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”
(A. 234).
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”
(A. 234).
D. The Selection of Jurors
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,” ap
points six jury commissioners from among “discreet per
sons” in the county for a six year term, Ga. Code Ann.,
§59-101. At least biennially, these commissioners compile
from the official registered voter’s list used at the last pre
ceding election a jury list of “intelligent and upright citi-
® At the first hearing Judge Bell stated: “ . . . The court con
strues that paragraph of the petition to mean, based on the evi
dence, that the First Amendment has been suspended in Taliaferro
County to the extent that citizens can’t assemble before their
officials and petition for their grievances. That’s been the evi
dence” (A. 214-215).
” Ga. Code Ann. §24-2501.
15
zens of the county.” Ga. Code Ann., §59-106.“ IVhile
Georgia law permits 18 year olds to vote only persons over
21 are eligible for jury service, Ga. Code Ann., §59-201.
After compiling the jury list the commissioners select
a “sufficient” number of the most “experienced, intelligent
and upright citizens”," not exceeding two fifths of the
whole, to serve as grand jurors." The judge of the Su
perior Court draws from the grand jury list so selected
not less than 18 nor more than 36 names to serve on a venire
for the next term of court, and the sheriff summons the
prospective jurors, Ga. Code Ann., §§59-203, 206. After
excusals, a grand jury panel consisting of not less than 18
nor more than 23 persons is drawn from the venire (A. 311-
314, 322), Ga. Code Ann., §59-202."
§106 also provides that: “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 intelligent and upright citizens
of the county, they shall supplement such list by going out into
the county and personally acquainting themselves with other citi
zens of the county, including intelligent and upright citizens of
any significantly identifiable group in the county which may not
be fairly represented thereon.”
” Prior to 1967, the commissioners were instructed to select
as jurors upright and intelligent persons from the books of the
Tax Receiver. Ga. Code Ann., §59-106 (superseded). The tax
books from which the prospective jurors were selected were segre
gated by race. Ga. Code Ann. §92-6307. See Whitus v. Georgia,
385 U. S. 546, 549 (1967).
The requirement that Grand Jurors be the most “experienced,
intelligent and upright citizens” was added to the statute in 1968
subsequent to trial in this ease.
Under Georgia law grand juries have a number of powers in
addition to indictment and appointment of school board mem
bers. They may recommend that individual tax returns be cor
rected, Ga. Code Ann. §59-306; inspect the list of voters, Ga. Code
Ann. §59-308 and the offices, papers, books and records of the
16
At the January 23,1968 hearing evidence was introduced
showing that on the jury list most recently composed, 56
out of a total of 328 traverse jurors (or 17%) were Negro
(A. 182-83, 399), and 11 out of 130 on the grand jury list
(or 8.5%) were Negro {ibid.). The district court concluded
that systematic exclusion 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” (A. 251).
The court adjourned the hearing after informing defend
ants of the court’s power to enjoin racial discrimination
if a remedy were not devised (A. 251, 254-255, 399).
At the beginning of the February 23, 1968 hearing ap
pellees’ counsel presented a report to the district court
which stated that on January 26, 1968, the judge of the
Superior Court ordered the jury commissioners to revise
clerk of the Superior Court, the ordinary and the county treasurer
or depository for conformance with their duties, 6a. Code Ann.
§59-309. The jury may appoint citizens to inspect the affairs of
the ordinary or other authority having charge of county affairs,
the clerk of the Superior Court, county treasurer, tax collector,
school superintendent, sheriff, and all other county ofSces, Ga.
Code Ann. §59-310. Persons appointed by the grand jury to
inspect have full power to take control of the various offices, to
compel the attendance of witnesses, and hear evidence of fraud
and the non-performance of official duty, Ga. Code Ann §59-311.
The jury is also obliged to inspect the sanitary conditions of jails
and to make recommendations as to their proper operation, Ga.
Code Ann. §59-314; to inspect all public buildings and property of
the county and report their condition, Ga. Code Ann. §59-315; and
to appoint a committee to inspect every orphanage, sanitorium, hos
pital, asylum, and similar facilities for the purpose of ascertaining
what persons are confined and by what authority, Ga Code Ann
§59-401.
17
both the grand and traverse jury lists “to comply with the
oral pronouncement” of the district court (A. 266). This
order was filed with the clerk of the Superior Court but
not generally publicized. By word of mouth, however, some
persons did hear of it and requested not to be put on the
jury list (A. 280-81). Over forty whites but only two or
three Negroes were not placed on the list as a result of such
requests not to serve (A. 89, 402). Appellants’ counsel ob
jected to the report on the ground that it was hearsay and
that neither he nor appellants had been informed of the
revision or furnished with the report in advance of the hear
ing but the district court received it in evidence (A. 269-
72; cf. 262).
According to the report the commissioners considered
“each and every name” (A. 77, 266, 67), on a list of 2,152
registered voters. When they were not familiar with
Negroes, they inquired of three Negroes who w'ere “brought
in to work with us in order to assist in excluding people
from the list” (A. 275, 76). They consisted of an insurance
agent, his daughter-in-law and a person who was employed
by the board of education but whose position the chairman
did not know. These Negroes were not, however, appointed
jury commissioners {Ibid).
The Commission eliminated the following numbers of
persons from the voters list for the reasons stated:
Poor health and over-age................................. 374
Under 21 years of a g e .................................... 79
Dead ............................................................... 93
Persons who maintained Taliaferro County
as a permanent place of residence but
were most of the time away from the
county ............................................................ 514
18
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 Commis
sioners as not conforming to the statu
tory qualifications for juries either be
cause of their being unintelligent or
because of their not being upright
citizens ....................................................... 178
Names on voters lists more than once......... 33
Total ............................................ 1,544
(A. 77-78, 267).
These disqualifications left 608 names on the list. The
commissioners determined that fewer than 608 names were
needed, alphabetized the remaining names, and discarded
every other one. Of the 304 persons on the list, 113 (37%)
were Negro and 191 (63%) were white (A. 78, 267). From
tlie 304 they drew 121 names by lot and put those names
on the grand jury list (A. 78, 268). Forty-four (36%)
of 121 persons on this list were Negroes (A. 79, 268).
Of 32 persons initially drawn from this list for the grand
jury, 9 (or 28%) were Negro. Of the 23 persons actually
selected to serve on the grand jurv, 6 (or 26%) were
Negro (A. 79, 268-69).'^
The judge begins with the first name on the list of 32 and
hears requests for excuses. After persons granted excuses are
eliminated, he chooses the first 23 names on the list (A 322)
19
Two months after the February 23, 1968 hearing, the
jury commissioners reported additional information con
cerning the revision to the district court and corrected
errors in earlier figures furnished. They found that 2,252
names, instead of 2,152, were on the voters list and that
eliminations were made for the following reasons:
Total Number Negro
Category of Names Names
Under 21 ........................... 81 71
Dead ................................. 94 Unknown
Kequested ......................... 43 2
No Information ....... 226 Unknown
Poor health and/or old
age ................................. 482 191
Away ................................. 533 263
Miscellaneous .................. 179 167
Elected Officials and then
Known Duplications .... 8 -0-
Not Alternately Selected 302 106
(A. 89).
The district court only partially accepted the fact stated
in this report. The court found that 171 of the 178 persons
excluded by reason of character and intelligence (as op
posed to 167 of 179) were Negro and that 3 of 43 persons
excluded by request (as opposed to 2 of 43) were Negro
(A. 402; cf. 89).
The commission chairman testified concerning the re
vision. Wlien asked what was meant by the standard of
“intelligent,” the chairman first stated it would be some
one capable of interpreting proceedings in the courtroom
but then that the standard used was whether persons could
20
read or write (A. 283). He later testified: “ we made
the overall consideration of uprightness in people who
were dependent and reliable and honest. We did not say
pick out so and so and say they were unintelligent”
(A. 284). Pie also testified that an “upright” citizen was
one who had a “good reputation, people who were honest
and of good character” (A. 284). While some persons
were omitted from the list because they had a criminal
record the Chairman had no idea of the number or the
offenses which constituted grounds for exclusion (A. 285).
For example, he did not know whether any persons were
found to lack a sufficiently upright character because of
having been convicted of a traffic violation (A. 287).
E. Selection and Duties of School Board Members
Under Georgia law, the county grand jury selects as
school board members five freeholders “of good moral
character, who shall have at least a fair knowledge of the
elementary branches of an English education and be favor
able to the common school system”, Ga. Code Ann.
§§32-902.1, 903. 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 quali
fied voters of the county voting in a referendum thereon,”
Ga. Code Ann. §2-6802. Approximately 94 of Georgia’s
school boards are chosen by county grand jury, Atlanta
Journal, p. 7-A (Feb. 2, 1969). Each member is elected
for a four year term, Ga. Code Ann. §2-6801; §32-902, but
the board files vacancies, other than which result from ex
piration of a term, until the next grand jury meeting, at
which a successor is chosen, Ga. Code Ann. §2-6801.
21
The board is required to meet between the 1st and the
15th of each month at the county seat for the transaction
of business pertaining to the public schools. Ga. Code
Ann. §32-908 provides that the board “shall annually de
termine the date of the meeting” and shall “publish same
in the official organ for two consecutive weeks following
the setting of said date; Provided further that said date
shall not be changed oftener than once in twelve months.”
The Georgia grand jury selection method is unusual. A
1949 study concluded that the prevailing method of selec
tion in the United States is by public vote. While several
states where the county is the basic unit of government,
have appointive boards (by the Governor in Maryland; the
General Assembly in North Carolina; School Trustee Elec
toral Boards in Virginia; and County Courts in some coun
ties in Tennessee) Georgia was apparently the only state
where appointment was by the grand jury. The Forty-
Eight State School Systems (Council of State Governments,
1949), pg. 59, Table 23, p. 196. A more recent survey of
477 school boards of various sizes and locations revealed
that 82.2% were elected. See Circular No. 6, Nov. 1967,
Educational Research Service (Washington, D. C.).
At the January 23, 1968 hearing in the district court the
presiding judge remarked that the absence 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]” (A. 252). Two vacancies existed on the school
board at the time of the hearing. The superintendent of
schools attended the hearing and upon her return informed
the school board of the presiding judge’s remarks (A. 350,
22
351)2'' Two days later, the county hoard of education met
and appointed one Negro and one white to the board.
Shortly thereafter these choices were ratified by the grand
jury (A. 268, 339)—apparently without the public notice
required by law (A. 348-349, 351). No Negroes attended
the meeting at which the Negro board member was selected
although Negroes had attended board meetings in the past
(A. 347-348). Nor did the board discuss the qualifications of
Casper Evans, the new Negro member, for board mem
bership (A. 351-52). He was “put in nomination and
elected” (A. 353). No elfort was made to give notice of
the appointment meeting to any parent or the plaintiffs in
this suit (A. 348, 353).
Appellant Turner testified that Mr. Evans was a distant
relative of his who was about 71 or 72 years of age and
retired (A. 374). Mr. Evans had only attended school to
the third or fourth grade (A. 375) and had often stated
that he did not feel like going out in public any more or
to attend community meetings, because of his age (A. 374-
75). Turner believed that Evans was unrepresentative of
the Negro community (A. 381, 385), and that if Negroes
had been afforded an opportunity to choose, they would
have selected someone far more qualified educationally,
and otherwise, to serve (A. 385).̂ ®
"W hen the superintendent was asked what efforts she had
made to keep the public school system from becoming all Negro
she replied that “the schools are open to all the children of Talia
ferro County” (A. 355-56).
He stated; “Mr. Casper Evans was taken from the lower
bracket, the very lowest bracket of those persons who have at-
tamed a education” (A. 387). “I submit, said Mr. Turner, the
pwple in that community . . . knew nothing about the election
of Mr. Evans, and . . . this certainly wouldn’t be the democratic
process” ( A. 381).
23
Summary of Argument
I.
Georgia confers an opportunity for arbitrary and dis
criminatory jury selection on jury commissioners by au
thorizing them to exclude persons they do not believe are
“intelligent and upright” citizens. Neither Ga. Code Ann.
§59-106, nor the practice of the all-white Taliaferro County
commission, supplies a meaningful definition of the statu
tory language. Vague standards have often been con
demned in other spheres of governmental activity precisely
because of their tendency to vest this sort of undue dis
cretion in officials to deprive citizens of their constitutional
rights. Eequirements of specificity are at least as neces
sary to a juror selection system, for although blatant acts
of discriminatory exclusion may be prevented by injunc
tion, the more subtle forms of the evil, such as discrimi
natory limitations of the number of Negro jurors, will
survive as long as Negroes can be declared ineligible on the
basis of subjective and intangible character judgments.
(In this case the opportunity to discriminate was employed
by exclusion of 171 Negroes and only 7 whites as not be
ing “intelligent and upright”.) The necessity of striking
Georgia’s vague selection standards for grand jurors is
heightened by the fact that the grand jurj" selects mem
bers of the county school board—a circumstance which has
resulted in the exclusion of Negroes from board member
ship in a county where all the public school children are
Negro.
24
II.
Georgia law authorizes a multi-layered scheme of selec
tion of school board members which has resulted in the
virtual exclusion of Negroes from board membership. Lim
itations on the right of Negroes to participate in the se
lection of officials “who control the local county matters
that intimately touch [their] lives,” Terry v. Adams, 345
U. S. 461, 470 (1953), violate the Constitution. When such
limitations dilute the weight of Negro votes they may be
redressed according to the standards of Reynolds v. Sims,
377 U. S. 533 (1964), but other remedies, reflecting the spe
cial need of Negroes to unimpaired political rights, may
also be employed. In Taliaferro County, dilution of the
power of Negroes to elect school board members has re
sulted in a segregated school system and in making the
Negroes virtually subject to the commands of the whites
in regard to the education of their children. The district
court erred by not declaring a school board selection system
which so operates unconstitutional and by failing to con
sider relief which would eliminate diminution of Negro
voting power for school board members.
III.
Georgia’s constitutional and statutory requirement that
county school board members must be freeholders violates
the Equal Protection Clause of the Fourteenth Amendment
for it discriminates against the poor and landless far more
than the poll tax condemned in Harper v. Virginia Board
of Elections, 383 U. S. 663 (1966). The freeholder restric
tion reflects an obsolete view of the attributes of real
25
property ownership, it hears no reasonable relationship
to any legitimate governmental objective, and it retards
citizen participation in what may be the most important
unit of local government. While the mischief caused by such
a prohibition is plain, Georgia has not suggested any “com
pelling interest” in the prohibition of non-freeholders from
board membership which would begin to meet the exact
ing standards of equal protection applied when the right
to vote is involved.
A R G U M E N T
I.
Statutory Standards Which Govern Georgia Jury Se
lection Are Unconstitutionally Vague and Permit Exclu
sion of Negroes From Jury Service in Violation of the
Fourteenth Amendment to the Constitution of the
United States.
In Wliitus V. Georgia, 385 U. S. 545, 552 (1967) this
Court condemned Georgia statutes which injected race into
the selection of jurymen because they provided an “oppor
tunity to discriminate,” see also Sims v. Georgia, 389 U. S.
404 (1967); Cohh v. Georgia, 389 U. S. 12 (1967); Jones v.
Georgia, 389 U. S. 24 (1967); Anderson v. Georgia, 390
U. S. 206 (1968); Sullivan v. Georgia, 390 U. S. 410 (1968);
Bostick v. South Carolina, 386 U. S. 479 (1967). In 1967,
the Georgia legislature changed the source of prospective
jurors from racially designated tax digests to voter lists,
but retained the “opportunity to discriminate” condemned
in Whitus, supra, by reenacting the vague and subjective
character “standards” of juror eligibility challenged here
26
—that all jurors be “intelligent and upright”.” In addi
tion, the “opportunity” for racial selection inherent in this
statutory language was “resorted to” (385 U. S. at 552)
by Taliaferro County jury commissioners, both before and
after this litigation commenced, a circumstance entitled
to considerable weight in considering the constitutionality
of the challenged statutory scheme, Louisiana v. United
States, 380 U. S. 145 (1965); Niemotko v. Maryland, 340
U. S. 268 (1951); Hague v. C. I. 0., 307 U. S. 496 (1939);
Tick Wo V. Hopkins, 118 U. S. 356 (1886). Although the
number of white and Negro voters in the county is equal,
until suit was filed only 11 of the 130 persons on the grand
jury list were Negro (A. 399) and during the court-ordered
revision of the jury list, approximately 96% (171 out of
178) of the persons disqualified by the commissioners as
not “intelligent and upright citizens” were Negro (A. 402).
It is apparent that the vagueness of the challenged provi
sions at the very least serves as a convenient mask for
what is plainly racial discrimination.
Georgia law creates several levels in the jury selection
process at which virtually unlimited discretion is dele
gated to persons possessing appointive powers. First, the
judge of the Superior Court, an official elected by the
voters of six counties, is authorized to appoint as county
jury commissioners anyone he deems to be “discreet”, Ga.
Code Ann. ^fifi-lOl. Although Negroes constitute a ma
jority of the county population, all the “discreet” persons
selected by Siiperior Court judges to be jury commission-
In 1968, the Legislature amended Ga. Code Ann. §59-106 to
require that grand jurors be “the most experienced, intelligent
and upright citizens” of those chosen as jurors.
27
ers over the years have been white. Second, the discretion
of the jury commissioners is such that they may disqualify
from service as jurors anyone they find not to be an “in
telligent and upright citizen” and anyone for grand jury
service who is not among “the most experienced, intelli
gent and upright”, Ga. Code Ann,, §59-106. Section 106
also provides that if at any time “it appears to the jury
commissioners” that the jury list is not a fairly representa
tive cross-section of the “intelligent and upright 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 intelligent and up
right 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 discrimi
nate” ; then charges the very same persons with the power
to determine by use of the same subjective standard
whether in fact the opportunity “was resorted to” {Whitus,
supra, 385 U. S. 552) and should be remedied.'®
The Taliaferro jury commissioners concede that eligi
bility under §106 is determined by their “personal” opin
ion. "Wlaen asked to “describe in full and complete detail
the standards applied” the commissioners responded by
denying the existence of uniform criteria defining “intel
ligent and upright” :
'® The language of 6a . Code Ann. §59-106 instructing the jury
commissioners to find additional jurors from readily identifiable
groups is less of a caveat than a camouflage. As long as “intelligent
and upright” remains a part of the jury selection statute, the
jury commissioners will have a built-in excuse for failing to in
clude Negro citizens on the juries.
28
We did not detail or fix any standards in making
a determination as to who is upright and intelligent.
As previously stated, this determination is based
upon our knowledge either personal or through in
vestigation of these persons being considered (A. 36).
When asked to state “in full and complete detail, the pro
cedures followed in selecting persons for the grand jury
list” the commissioners stated that there “was no set pro
cedure for this selection process” :
From the official registered voters list which was
rised in the last preceding general election, as a group
we selected a fairly representative cross-section of
the upright and intelligent citizens of the county.
There was no set procedure for this selection process.
AVe did it as a group (A. 36).
The manner in which the commissioners confronted their
constitutional and statutory duty to select a cross-section
of the community is illustrated by the fact that until after
the court-ordered revision of the illegal jury lists the
commissioners professed total ignorance as to whether
discernible groups in the community were represented:
Q. 6. How many members of the present grand jury
list are members of the Negro race? A. 6. AVe do not
know.
Q. 7. How many members of the present grand jury
list are w’hite females? A. 7. AVe do not know.
Q. 8. How many members of the present grand jury
list are Negro females? A. 8. AÂe do not Imow.
29
Q. 17. Of the names on the voter’s list, how many
are Negroes? A. 17. We do not know.
Q. 18. Of the names on the voter’s list, how many are
white females? A. 18. We do not know.
Q. 19. Of the names on the voter’s list, how many
are Negro females? A. We do not know (A. 30-32,
36, 37).
Even after the revision process was completed, the com
mission had not formulated standards of selection to make
the vague language of §106 more precise. The chairman
testified, for example, that an “upright citizen” Avas one
who had a “good reputation in the community, good
character” (A. 284). As to the term “intelligent”, he
presented totally inconsistent definitions. First, he defined
the intelligent a s :
People who we thought would be capable of inter
preting proceedings that would be going on in the
courtroom (A. 283).
But we asked “what standards did you use,” he replied:
People that could not read nor write to our knowledge.
I don’t think we rejected anyone because you say they
are unintelligent. I mean that—
Judge Bell: You said awhile ago being able to
understand proceedings in court.
The W itness: Yes sir, and we made the overall
consideration of uprightness and people who were de
pendent and reliable and honest. We did not say pick
out so and so and say they were unintelligent.
Judge Bell: In other words, you measured these
people by the standard as to Avhether or not they were
30
capable of serving on a jury and understand what the
duty of a juror was?
The Witness: That’s right, sir (A. 284).
This jury selection scheme—as authorized by Georgia
law and employed by the Taliaferro County Commissioners
—violates appellants’ rights under the Fourteenth Amend
ment. First. As is true with racial discrimination in
voting '̂* (an analogy especially pertinent here in light of
the dual role of the grand jury system see supra p. 20),
excessive discretion in the hands of local officials thwarts
nonracial selection of prospective jurors. Judge Kaufman
merely summarized what is generally recognized when he
told a United States Senate Committee that:
“ . . . long experience with subjective requirements such
as ‘intelligence’ and ‘common sense’ has demonstrated
beyond doubt that these vague terms provide a fertile
ground for discrimination and arbitrariness, even when
the jury officials act in good faith.”
One study of jury selection procedures has concluded that
until character tests are replaced by objective standards
non-racial selection is unlikely: “It is this broad discretion
located in a non-judicial officer which provides the source
of discrimination in the selection of juries.” The Congress,
Condemnation of discretion in the hands of state voting of
ficials is the heart of recent decisions of the Court. See United
States V. Mississippi, 380 IT. S. 128 (1965); Louisiana v. United
States, 380 U. S. 145 (1965).
Statement of Hon. Irving E. Kaufman, Hearings on S. 1318
before the Subcomm. on Improvements in Judicial Machinery of
the Senate Comm, on the Judiciary, 90th Cong., 1st Sess. at 251
(1967). See also Kuhn, “Jury Discrimination: The Next Phase,”
41 U. S. C. Law Rev. 235, 266-82 (1968).
31
The Court and Jury Selection, 52 Va. L. Rev., 1069, 1078
(1966); see also Rabinowitz v. United States, 366 F. 2d 34
(5th Cir. en banc 1966).^^
Second. While character tests such as those contained
in §106 provide a ready opportunity for racial selection,
their “indefiniteness . . . makes it most difficult to prove
that rejection of an eligible juror was the product not of
honest opinion but of racial policy” Kuhn, op. cit. p. 271.
Opinions of uprightness and intelligence primarily depend
on the individual making the judgment. Thus, a commis
sion bent on racial discrimination may do so without check
as long as it is satisfied with limiting the number of
Negroes serving rather than excluding them totally.
Third. Even the fair minded commissioner is likely to
be misled by the shifting and subjective nature of char
acter standards into racial or other arbitrary selection.
The Fourth Circuit made this point forcefully when con
sidering a Virginia statutory scheme similar to that in
volved in this case:
I t should not surprise anyone that an all-white jury
commission guided by a white judge would be unlikely
to find as high proportion of the Negro community
to be “best qualified” as found among white people.
I t is a simple truth of human nature that we usually
find the “best” people in our own image, including,
In recognition of the dangers of subjective selection standards,
Congress passed the 1968 Jury Selection and Service Act, Pub. L.
No. 90-273, 28 U. S. C. §§1861 et seq., abandoning the “key man”
system in favor of “random selections” and “objective criteria
only” in determining juror qualifications. See House Report, No.
1076, Peb. 6, 1968 (to accompany S. 989) set out in U. S. Code
Congressional and Administrative News, 90th Cong. 2nd Sess. pp.
748-63.
32
unfortunately, our own pigmentation. But the danger
is not simply subjective. As a practical matter, in a
society that is still largely segregated, at least socially,
it is obviously true that white people do not generally
have the wide acquaintance among Negroes that they
have among other white people. A failure of either
the judge or the commissioners fully to acquaint them
selves with all those eligible for jury duty can just as
effectively result in racial discrimination as would
conscious and deliberate invidious selection. Indeed,
within the meaning of the Equal Protection Clause,
such a failure has been equated with deliberate and
purposeful discrimination. Rill v. Texas, 316 U. S.
400, 404 (1942).
Achievement of the stated purpose of the judge and
the jury conamissioners to get only the “best qualified
people” was not aided by the existence of any objective
standard that might have been readily applied. The
only direction given by the legislature to the judge
in that regard is that he select from the citizens of
each county “persons 21 years of age and upwards,
of honesty, intelligence and good demeanor and suit
able in all respects to serve as grand jurors * * * ”
These are qualities hard to judge. The standards ap
plied by the jury commissioners were, according to
the oath subscribed by them, no more definite: “We
wull select none but persons whom we believe to be of
good repute for intelligence and honesty” Standards
such as these afford but little guidance to the consci
entious judge and jury commissioner. I t is not un
natural that each may be left with the feeling that he
has discharged his duty when he has subjectively
selected the “best folks” loiown to him.
33
Selection of jurors “must always accord with the
fact that the proper functioning of the jury system,
and, indeed, our democracy itself, requires that the
jury be a ‘body truly representative of the community,’
and not the organ of any special group or class. If
that requirement is observed, the officials charged with
choosing federal jurors may exercise some discretion
to the end that competent jurors may be called. But
they must not allow the desire for competent jurors
to lead them into selections which do not comport with
the concept of the jury as a cross-section of the com
munity. Tendencies, no matter how slight, toward the
selection of jurors by any method other than a process
which will insure a trial by a representative group are
undermining processes weakening the institution of
jury trial, and should be sturdily resisted. {Witcher v.
Peyton, 405 F. 2d 725, 727 (4th Cir., 1969)
Finally, there is an evil inherent in vague character and
intelligence eligibility standards which is no less signifi
cant for it being difficult to prove in any particular case.
It is that “commissioners can easily select only those Ne
groes who behave as Negroes are meant to behave in their
contacts with white society—Negroes who ‘know their place.’
Indeed, it is only natural for southern jury officials to find
lacking in ‘judgment’ and ‘character’ those Negroes who
engage in civil rights activities, who ‘talk back’ to white
employers, or who have hung juries in previoris cases with
racial significance. The usual statutory criteria readily
lend themselves to selection only of ‘safe’ Negroes who will
do what is expected of them in the jury room. The jury
commissioners may consciously exclude all but ‘Uncle
Toms,’ or they may in good faith simply regard other
34
Negroes as lacking in the qualities required of good jurors.”
(Kuhn, op. cit. at p. 271).
It is settled, however, that officials may not be empow
ered to dispense or deny important constitutional rights
in the exercise of a discretion which consists solely of
their own judgment, unguided by statutory or other guide
lines. In other spheres of governmental activity this Court
has declared similar language permitting public officials
to make subjective decisions unconstitutional.^^ Dealing
with voting qualifications imposed by South Carolina
law, similar to those involved here for jury service, this
Court declared in South Carolina v. Katsenbach, 383 U. S.
301, 312-13 (1966):
“ . . . the good morals requirement is so vague and sub
jective that it has constituted an open invitation to
abuse at the hands of voting officials.”
Kequirements of specificity are at least as necessary in
a selection system for jurors. “ [EJxclusion from jury
“Unreasonable charges” United States v. L. Cohen Grocery
Co., 255 U. S. 81 (1921); “unreasonable profits” Cline v. Frink
Dairy Co., 274 U. S. 445 (1927); “reasonable time” Herndon v.
Loivry, 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); “immoral”
Commercial Pictures Corp. v. Regents of University of New York
reported with Superior Films, Inc. v. Department of Education,
364 U. S. 587 (1954); “an act likely to produce violence” in Ed
wards V. South Carolina, 373 U. S. 229 (1963) ; “subversive per
son” in Baggett v. Bullitt, 377 U. S. 360 (1964); “reprehensive
in some respect” ; “improper” ; and outrageous to “morality and
justice” Giaccio V. Pennsylvania, 383 U. S. 339 (1966). See also
Stauh V. City of Baxley, 355 U. S. 313 (1958) ; Louisiana v. United
States, 380 U. S. 145, 153 (1965) ; United States v. Atkins, 323
F. 2d 733, 742-743 (5th Cir. 1963); Davis v. Schnell, 81 F. Supp.
872 (S. D. Ala.) aff’d per curiam, 336 U. S. 933 (1949); Board of
Supervisors v. Ludley, 252 F. 2d 373, 74 (5th Cir. 1958).
35
service . . . is at war with our basic concepts of a demo
cratic society and a representative government”. Smith v.
Texas, 311 U. S. 128, 130 (1940). And when, in addition,
the electoral function of the Georgia grand jury is con
sidered (see stbpra p. 20), the denial of Fourteenth Amend
ment rights by conferral of excessive discretion in the jury
commissioners is plain. There is simply no reason for
the State of Georgia to require that grand jurors who
may vote in its school board elections be “intelligent and
upright” when persons who vote in general elections must
meet no such standard. The school board “voter registrars”,
who in Georgia happen to be jury commissioners, have “vir
tually uncontrolled discretion as to who should vote and
who should not.” Louisia'im v. United States, 380 U. S.
145, 150 (1965). In that case, this Court sustained a lower
court decision holding the state’s voter qualification test,
which required the prospective voter to interpret portions
of the Louisiana or United States Constitutions, invalid
on its face and as applied, under the Fourteenth and
Fifteenth Amendments. Basic to the Court’s holding was
the fact that the test “imposed no definite and objective
standards” upon the registrars who were charged with
administering it. (380 U. S. at 152)
Appellants do not contend that the state can set no
standards at all as qualifications for jurors (or school
board electors) but qualifications that the state sets must
be compatible with federal constitutional requirements.
As the record in this case amply demonstrates, there is
no question but that the present indefinite and non
objective standards permit an extraordinary denial of
equal protection: in a county where Negroes are more
than 60 percent of the popxilation and 50 percent of the
36
voters, they make up a disproportionate minority of grand
jurors. By manipulation of the standardless and unre-
viewahle discretion which Georgia has delegated to jury
commissioners, Negroes have been rendered a minority
of the school board electors as surely as though they
had been gerrymandered out of the county. Cf. Oomillion
V. LigUfoot, 364 U. S. 339 (1960).
General injunctions against racial exclusion such as
granted by the district court may be sufficient to prevent
blatant acts of discrimination such as existed prior to
institution of this litigation, but subtler forms will sur
vive as long as tools such as character tests which measure
intangibles remain readily available. At the first hearing
in this case, the district court, in effect, ordered recom
position of the county jury lists on a non-discriminatory
basis. While the result was an increase in the absolute
number of Negroes selected, an overwhelming proportion
(about 96%) of those excluded by the all-white commis
sioners during the revision as not “intelligent and upright
citizens” were Negro. Thus, under the existing statu
tory scheme it may well be possible to eliminate near
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 as well which the Con
stitution prohibits: “Discriminations against a race by
barring or limiting citizens of that race from participa
tion in jury service are odious to our thought and our Con
stitution” (emphasis added).^^ Broivn v. Allen, 344 U. S.
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
discarding half the registered voters not disqualified. One of the
37
433, 470-471 (1953) citing Brunson v. North Carolina, 333
U. S. 851 (1948); Cassell v. Texas, 339 II. S. 282, 286, 287
(1950).
It may well be that Taliaferro jury commissioners truly
believe that of all the registered voters who are by rea
son 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. Delaware,
103 U. S. 370, 397 (1881), to bear upon decisions as to who
should be selected 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.
statutory standards of disqualification, the character and intel
ligence test, in effect, operated to exclude Negroes on ly : the dis
trict court found that of the 178 persons excluded, 171 were Ne
gro. Thus prior to application of the character test there was
approximately a 50-50 percentage breakdown refiected on the lists
if we assume that the random number discarded merely halved
the numbers of the whites and Negroes of 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 of the
revised list from approximately 50% (the proportion of Negro
voters) to 37%.
38
II.
Georgia Constitutional and Statutory Provisions for
Selection of School Board Members Operate in Talia
ferro County to Dilute Negro Participation in the Selec
tion of Board Members in Violation of the Thirteenth,
Fourteenth, and Fifteenth Amendments to the Constitu
tion of the United States.
Although Negroes constitute about 60% of the resi
dents and 50% of the registered voters in Taliaferro
County, they long have been virtually excluded from jury
service. Even after the district court found a blatant and
long-standing disregard of Negroes’ constitutional rights,
the revised jury list contained disproportionately few
Negroes:
113 Negroes ..................................... 37%
191 Whites ...................................... 63%
The new grand jury chosen from this list contained even
fewer:
6 Negroes ..................................... 26%
17 Whites ...................................... 74%
Because the grand jury selects the county school board,
Negroes have been consistently excluded from board mem
bership despite the fact that, since 1965, the public schools
have been attended and staffed solely by Negroes, whites
having sent their children to private school or to public
schools in other counties to avoid desegregation. And
while the first Negro was selected to fill a vacancy on the
five member board before the second hearing in this case,
39
this was done only after the district court strongly im
plied that the court would act if Negro exclusion from the
board continued.
Appellants contend in Argument I, supra, that the jury
list, as revised, violates the Fourteenth Amendment be
cause it was compiled pursuant to unconstitutionally vague
statutory provisions which provide an undue opportunity
to discriminate on the basis of race. Independent of
appellants’ contentions in this respect, however, the use
of the grand jury to select school board members in Talia
ferro County violates the Thirteenth, Fourteenth and
Fifteenth Amendments because Georgia has adopted a
method of selection which operates to dilute the political
influence of Negro citizens. Even if equality of represen
tation is not required in selecting jurors who have no
political function, stricter standards apply here for two
reasons: (1) “the theme of the Constitution is equality
among citizens in the exercise of their political rights”
and the Georgia grand jurj^ exercises political power by
reason of its selection of school board members; and (2)
The Thirteenth, Fourteenth and Fifteenth Amendments
were intended to prohibit diminution of the voting power
of Negroes, the very turning of “Negro majorities into
minorities” Sims v. Baggett, 247 F. Supp. 96, 109 (M. D.
Ala. 1965) which has occurred here.
That the system of selection of board members involved
does not provide for direct election does not diminish the
rights of Negroes to be afforded full and equal participa
tion in it. Sailors v. Board of Education, of Kent County,
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 n. 41 (1964).
40
387 U. S. 105 (1967) illustrates the principle that the right
of states to regulate their political subdivisions may not
validate racial discrimination. There selection of school
officials was held not subject to “one man, one vote” re
quirements, the latter being subordinate to the right of
states to use appointive, non-representative, methods for
choosing administrative officials. But this Court was
careful to distinguish racial discrimination in the political
process from the Sailors holding (387 U. S. at 108-109):
A State cannot, of course, manipulate its political
subdivisions so as to defeat a federally protected
right, as for example, by realigning political subdi
visions 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.^' Cf. Hadnott v. A m os,----- U. S. ------ , 37
U. S. L. Week 4256 (March 25, 1969).
Unconstitutional dilution of the Negro vote in Taliaferro
County is established under the standards of Reynolds v.
It can hardly be argued that the policy of the Thirteenth,
Fourteenth, and Fifteenth Amendments contemplates permissible
exclusions of Negroes from a political process merely because the
particular form of selection involved is not a general election.
The primary purpose of those Amendments, recognized in numer
ous decisions of this Court, see Shelley v. Kraemer, 334 U. S. 1, 23
(1948) and cases cited in footnote 30; Nixon v. Herndon, 273
U. S. 536, ̂ 540-41 (1927) 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.
41
Sims, 377 U. S. 533 (1964).̂ ® For years, Negroes have
accounted for virtually none of the electorate of grand
jurors, and they accounted for only 26% of the most recent
jury.” In Reynolds, 25.1% of the population could elect
50% of the state senate, and 25.7% could elect half the
state house of representatives (377 U. S. at 545). Here
whites, with 50% of the voters have 74% of the elec
toral strength, almost the same percentage gap as in
Reynolds. In Davis v. Mann, 377 U. S. 678, 688-89 (1964),
the disparity between population and voting strength was
less than 10% with regard to both houses of the state
legislature. In WMCA v. Lomenzo, 377 U. S. 633, 647
(1964) the disparity was 16.3% with regard to one house
and 8.2% as to the other.
But neither the rights asserted, nor the remedies to
which appellants are entitled, need rest on Reynolds v.
Sims, supra, and Ralter v. Carr, 369 U. S. 186 (1962).̂ ®
Vote dilutions also appear to be prohibited under §2 of the
Voting Eights Act of 1965 which bans any “practice or procedure
. . . imposed . . . by any State or political subdivision to deny or
abridge the right of any citizen of the United States to vote on
account of race or color” (emphasis added). See Allen v. State
Board of Elections, ------ U. S . ------ , 37 U. S. L. Week 4168, 73
(March 3, 1969).
Although a random selection system accounted for a drop
from an original representation of 37% on the jury lists to the
26% figure on the panel, the latter is determinative. Nothing in
Reynolds indicates that states have the right by a random selec
tion process to dilute votes. Even though that same process may
at some future time result in a higher proportional representation,
Reynolds, does not stand for the proposition that occasional vote
dilutions are more constitutional than unvarying ones.
Diminishment of the effectiveness of Negro votes by use of
the gerrymander was condemned in Gomillion v. Lightfoot, 364
U. S. 339 (1960) while Colegrove v. Green, 328 U. S. 549 (1946)
still appeared to prohibit judicial intervention in disputes alleging
non-racial vote dilutions. Mr. Justice Frankfurter, writing ma-
42
These cases merely extend the long established willingness
of the Court to overturn state political processes which
discriminate against Negroes to devices which discriminate
against persons who are not members of a racial minority.
It is possible—indeed, it is exceedingly simple—to burden
the franchise in a racially discriminatory manner while
insuring that individuals, whether black or white, account
for the same fractional share of a representative’s constit
uency as every other voter. Thus, in Sims v. Baggett, the
harm done by aggregating Negro and white counties was
the diminution “of the Negro voting power” and the turn
ing of “Negro majorities into minorities” 247 F. Supp. at
109; see also Smith v. Paris, 257 F. Supp. 901 (M. D. Ala.
N. D. 1966) affirmed 386 F. 2d 979 (5th Cir. 1967); Gomil-
lion V. Lightfoot, 364 U. S. 339 (1960); Hadnott v. Amos,
----- U. S . ------ , 37 TJ. S. L. Week 4256 (March 25, 1969).
The national objective of eradicating voting discrimina
tions against Negroes is an affirmative and specific consti
tutional pledge which antedates “one man, one vote” and
is in no sense limited by it, as demonstrated by the fact
that reapportionment law is limited to a defined class of
elections. Sailors v. Board of Education of Kent County,
387 U. S. 105 (1967) while constitutional prohibitions of
racial discrimination include “any [election] . . . in which
public issues are decided or public officials selected,” Terry
V. Adams, 345 U. S. 461, 468 (1953) (Mr. Justice Black,
jority opinions in both, found no inconsistency between the two
results, for it was almost 100 years ago that the Fifteenth Amend
ment established as national policy the doctrine that the right of
ISegroes not to be denied the franchise could not be “indirectly
denied.” Smith v. Allwright, 321 U. S. 649, 664 (1944). See also
Lane v. Wilson, 307 U. S. 268 (1939); Davis v. Schnell, 336 U. S.
^33 (1949),
43
concurring); Hadnott v. Am os,----- U. S .------ , 37 IT. S. L.
Week4256 (March25,1969).^^
In Taliaferro County, the method for selection of school
board members prevents Negroes from effectively influenc
ing the choice of officials whose decisions critically affect
their lives and those of their children. The effect of the
system of selection is to render Negroes a minority of
A ll three Civil W ar Amendments had as their central purpose
the eradication of the last vestiges of slavery. See Harper v. Vir
ginia Board of Elections, 383 U. S. 663, 682, n. 3 (1966) (dis
senting opinion of Mr. Justice Harlan) ; Shelley v. Kraemer, 334
U. S. 1, 23 (1948); Slaughter House Cases, 83 U. S. 36, 81 (1873).
Because the “peculiar institution” was ground so firmly in the
Negro’s political subordination to whites, constructions of the F if
teenth Amendment have often recognized the right of Negroes to
more than abstract voting privileges, and cases such as Gomillion
V. Lightfoot, supra; Terry v. Adams, supra; Lane v. Wilson, supra;
see also Bice v. Elmore, 165 F. 2d 387 (4th Cir. 1948) all stand
for the proposition that possession of the right to vote by Negroes
is meaningless unless that right can be effectively used to gain a
share of influence over the administration of vital community
affairs. As stated in Bice, supra, at 165 F. 2d at 393 (cited with
approval in Terry, supra, at 345 U. S. 466) :
no election machinery can be upheld if its purpose or effect
is to deny to the Negro, on account of his race or color, any
effective voice in the government of his county or the state or
community where he lives (emphasis added).
This Court has recently held that burdens upon the ability of
Negro candidates to be elected violate the Fifteenth Amendment
because they deprive Negro voters of the right “to cast their votes
effectively,” Hadnott v. Amos, 37 LW 4256, 57 (1969). Thus, the
Civil War Amendments are concerned with more than the simple
abstract right to vote. The protection of voting is one means to
ward the achievement of what is necessarily the larger goal of
preserving the ability of Negroes to engage the political process
effectively in the protection and establishment of their freedom.
Votes alone are insignificant unless they are permitted to work
toward that objective, and dilutions are to be measured not merely
by their effect to diminish the weight of votes, but by their effect
to dilute the capacity of those votes to achieve their underlying
objective, namely the eradication of the remnants of slavery.
44
those who select board members, thus jeopardizing their
right to a desegregated school system, and conferring con
trol of the schools on those who have no interest in educa
tional quality, and whose hostility to Negroes in the county
is a matter of record. The evil is not diminished because
all Negroes have not been precluded from participation in
the selection process. “ (D)ilution of Negro voting power
. . . is just as discriminatory as complete disfranchisement
or total segregation.” Sims v. Baggett, 247 F. Supp. 96,
109 (M. D. Ala. 1965). Nor is the injury to appellants
lessened by the fact that a Negro was finally put on the
school board after the first hearing in this cause. The evi
dence suggests that this was a token appointment by the
grand jury under pressure of this lawsuit. The selection
was without public notice, contrary to state law, and there
was evidence that the person chosen was infirm, and not
representative of the Negro community, see supra pp. 21,
22. In any case, the essence of appellants’ claim is that
they, and the class they represent, are limited in their power
of choosing board members; that claim is in no way weak
ened by the fact that the school board 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 inescapable 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.
llHiere 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, supra;
Smith V. Allwright, supra. Where a vague delegation of
45
power lias been the mechanism involved, the delegation
has been abolished, Louisiana v. U. 8., supra. In their
complaint, appellants also sought appointment of a re
ceiver to operate the school system until a constitutional
system of selecting board members could be instituted. In
addition, the district court might have appropriately re
stricted control of the schools to Negro parents until whites
demonstrated the kind of good faith which would render
their participation no longer a danger to Negroes, say by
reversing the withdrawal of their children from the system.
The district court erred fundamentally, and, misconceived
its function, in not adopting one of the available remedies
which would eliminate the diminution of the franchise
worked by the grand jury selection system.
Federal equity courts have broad power to mold their
remedies and adapt relief to the circumstances and needs
of particular cases. The test of the propriety of such
measures is whether remedial action reasonably tends to
dissipate the effects of the condemned actions and to pre
vent their continuance. United States v. National Lead Co.,
332 U. S. 319 (1947). Where a corporation, for example,
has acquired unlawful monopoly power which would con
tinue to operate as long as the corporation retained its
present form, effectuation of the Sherman Antitrust Act
has been held even to require the complete dissolution of
corporate relationships. United States v. Standard OH
Co., 221 U. S. 1 (1910); Schine Chain Theatres v. United
States, 334 U. S. 110 (1948). Compare N. L. R. B. v. New
port News Shipbuilding S Drydock Co., 308 U. S. 241, 250
(1939); Louisiana v. United States, 380 U. S. at 154 (1965).
Numerous decisions establish that the federal courts con
strue their power and duties in supervising the dis-
46
establishment of racial discrimination to require as ef
fective relief as in the antitrust aread° So in Griffin v.
School Board of Prince Edward County, Va., 377 U. S. 218
(1964) this Court ordered a public school system which
had been closed to avoid desegregation to be reopened.
See also Green v. A'ew Kent County Board of Education,
391 U. S. 430, 438, n. 4 (1968).
In this case the deprivation of political power through
the layers of discretion authorized by the statutory selec
tion scheme—from appointment of jury commissioners by
a .judge elected by voters of six counties to grand jury
selection—powerfully affects “matters that intimately
touch the daily lives of citizens,” Terry v. Adams, 345 U. S.
461 (1953)."' The proper education of their children has
"“ E.g., Carr v. Montgomery County (Ala.) Board of Educa
tion, 253 P. Supp. 306 (M. D. Ala. 1966); Dowell v. School
Board of OMahoma City, 244 P. Supp. 971 (W. D. Okla., 1965)
aff’d 375 P. 2d 158 (10th Cir., 1967), cert. den. 387 U. S. 931
(1967); United States v. Logue, 344 P. 2d 290 (5th Cir. 1965);
Board of Public Instruction of Duval Co., Fla. v. Braxton, 326
P. 2d 616, 630 (5th Cir., 1964); Wheeler v. Durham City Board
of Education, 346 P. 2d 768 (4th Cir., 1965); Kelly v. Altheimer,
378 P. 2d 483 (8th Cir., 1967); United States v. Scarborough,
348 P. 2d 168 (5th Cir. 1965).
"'Powerlessness to affect the fate of their children was one of
the most characteristic—and one of the most destructive— aspects
of Negro slavery. Yet, today in Taliaferro County, not only are
Negro children trapped in a school system which keeps them in
racial isolation, but the parents of those children are prohibited
from influencing the administration of the schools. Negro parents
are kept from attending board meetings, they cannot observe
their children in class and they cannot even freely form a par-
ents-teachers association, see pp. 12-14, supra (A. 188-190 206-
07, 210-211, 225, 229). Negro children do not enjoy an integrated
education in Taliaferro largely because three years ago a scheme
was devised enabling white students to avoid attending integrated
schools. School board participation in this conspiracy was so well
established that in 1965 the district court felt constrained to re
move the school system from board control and place it in re-
47
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 pro
tected within the context of a structure which is subject to
total domination by county whites who have continu
ally and consistently shown themselves antagonistic 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
school system in receivership. Since the termination of that
receivership 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
public schools. The school board even refuses to listen to
the grievances of Negro parents whose children do attend
eeivership. That receivership was terminated three months later
with the expectation that the board would “resume the operation
of a complete school system for 1966-67.” The return of the
schools to board control was “so that necessary plans for operating
the school system in 1966-67 may be made.” It was further noted
that “the dual school system has been abolished for 1966-67.”
Turner v. Goolsby, 255 P. Supp. 724, 734 (S. D. Ga. 1965; supp.
opinion 1966). The court clearly expected that the board was
prepared to administer an integrated system but the board has
not fulfilled that expectation. No board member has a child in
the public schools (A. 23, 47). Nor has the board made any
effective effort to induce a single white teacher or child back into
the system (A. 357-59). In short, with regard to the education
of their children, Taliaferro Negroes are in a position quite analo
gous to a pre-Civil War characterization of slaves as persons who
were considered to b e ;
A subordinate and inferior class of beings, who had been
subjugated by the dominant race, and whether emancipated
or not, yet remained subject to their authority and had no
rights or privileges but such as those who held the power,
and the government might choose to grant them. Bred Scott
V. Sanford, 19 How. 399, 404-05, 60 U. S. 393, 404-405
(1857).
48
the schools {supra, pp. 12-14). In such circumstances, the
Georgia scheme for selecting school board members oper
ates in this county to deprive appellants of rights guaran
teed by the Constitution. Until the state provides a system
of selecting hoard members which does not unconstitution
ally dilute the votes of Negroes, the district court is
obliged to fashion a remedy to ensure that those who con
trol the school system fairly represent the interests of
Negroes.
III.
Georgia’s Prohibition of Membership on County
Boards of Education to Non-Freeholders Violates the
Fourteenth Amendment.
By statute and constitutional provision, Georgia re
stricts membership on those county boards of education
which are selected by a county grand jury to “five free
holders”—persons who hold title real property in the
county,* ̂ Ga. Code Ann. §2-6801, Art. VIII, §V, para. I.
of the Constitution of 1945;'® Ga. Code Ann. §§32-902,
902.1.
The court below rejected appellants’ contention that by
prohibiting those who did not own real property from
school board membership Georgia had violated the Equal
A freeliold is <a generic term which describes “any estate .
existing in or arising from” real property, 28 Am. Jur. 2d, Estates
§o. As defined in Black s Law Dictionary a freeholder is ‘̂one
having title to realty” (4th Ed. 1957) p. 793.
"T he Georgia Constitution states;
The Grand Jury of each county shall select from the citizens
ot their respective counties five freeholders, who shall con
stitute the County Board of Education. Ga. Code Ann., §2-
6801. ’
49
Protection Clause of the Fourteenth Amendment. The
court did not decide what valid state interest, if any, this
prohibition served. It merely concluded that this unequal
treatment to non-freeholders did not amount to invidious
discrimination:
There was no evidence to indicate that such a qualifi
cation resulted in any invidious discrimination against
any particular segment of the community, based on
race or otherwise (A. 403).
This language should not be understood as a finding by
the district court that appellants lack standing, for the
court granted, and appellees did not oppose, the inter
vention of a non-freeholder, a father of six school chil
dren, who plainly possessed requisite standing to chal
lenge a statute which prohibited him from serving on
the county school board. Bond v. Floyd, 385 U. S. 116
(1966); Baler v. Carr, 369 U. S. 186 (1962). The district
court permitted intervention (A. 72, 73) for the express
purpose of conferring standing and as Judge Bell put it:
“ . . . to make certain that the Court will reach the merits
of the claim that an application based on freeholders is
unconstitutional” (A. 370-71).
Numerous decisions of this Court, however, stand for
the substantive proposition apparently rejected by the
district court that the poor form a class protected by the
Equal Protection Clause against state legislation which
discriminates on the basis of wealth,®* and Harper v. Vir
ginia Board of Elections, 383 U. S. 663 (1966) makes
plain that the Equal Protection Clause prohibits discrimi
natory treatment of the poor in the political arena.
E.g., Griffin v. Illinois, 351 U. S. 12 (1956); Smith v. Ben
nett, 365 U. S. 708 (1961).
50
It is also established that the right to seek office as Avell
as the right to vote may not be infringed on the basis of
invidious discrimination. Bond v. Floyd, 385 U. S. 116
(1966); Anderson v. Martin, 375 U. S. 399, 401-402 (1964).
The “right to choose, secured by the Constitution,” United
States v. Classic, 313 U. S. 299, 315 (1943) surely encom
passes not only the casting of ballots but the right to
appear on those ballots as a candidate, subject only to such
rational requirements for candidacy consistent with the
Equal Protection Clause as the States may prescribe. P ar
ticipation in the electoral process necessarily includes the
right to seek office. In Bond v. Floyd, supra at 385 U. S.
130, Georgia conceded that “if a State Legislature excluded
a legislator on racial or other clearly unconstitutional
grounds, the federal (or state) judiciary would be justified
in testing the exclusion by federal constitutional stand
ards.”
On its face, the Georgia freehold qualification for school
board membership operates as an unconstitutional denial
of equal protection against the poor and non-landholders;
For to repeat, wealth or fee paying has, in our view,
no relation to voting qualifications; the right to vote
is too precious, too fundamental to be so burdened or
conditioned. {Harper, supra, 383 U. S. at 670.)
In fact, the requirement that one be a freeholder is so much
more substantial than the $1.50 poll tax which the Court
struck down in Harper that it emphasizes the disfranchise
ment in this case.®' That Georgia’s constitutional and
Decisions in two recent cases construe Harper to compel the
demise of financial restraints on enjoyment of political rights.
Significantly, both cases dealt with the barrier involved in the in-
51
statutory limitation on the right to serve as a school
board member to “five freeholders” is in violation of con
stitutional requirements is also supported by the prin
ciple that the standards of the Equal Protection Clause
are the more exactingly applied where the franchise is
concerned. When the State attempts to restrict a funda
mental right it can do so only on the showing of a “com
pelling interest.” Sherbert v. Verner, 374 U. S. 398, 405
(1963); N. A. A. C. P. v. Button, 371 U. S. 415, 438 (1963);
West Virginia State Bd. of Educ. v. Barnette, 319 U. S.
stant case— the antiquated condition of a right on the ownership
of real property. In Pierce v. Ossining, 292 P. Supp. 113 (S. D.
N. Y. 1968) the property requirement struck down was a prereq
uisite to voting in a town election. In Landes v. Town of Hemp
stead, 231 N. B. 2d 120, 20 N. Y. 2d 417, 284 N. Y. S. 2d 417
(1967), the New York Court of Appeals overruled a 1937 decision
and rejected a property requirement as a limitation on the right
to hold office. The New York Court of Appeals found that “it is
impossible . . . to find any rational connection between qualifica
tions for administering town affairs and ownership of real prop
erty” (20 N. Y. 2d at 421).
Two other cases reach a different result. Cipriano v. City of
Houma, upheld a restriction that property taxpayers only vote
on a resolution authorizing issuance of utility revenue bonds, 286
F. Supp. 823 (E. D. La. 1968) probable jurisdiction noted 37
U. S. L. Week 3275 (Jan. 14, 1969) 0 . T. 1968, No. 705. Kramer v.
Union Free School District No. 15, 0 . T. 1968, No. 258, argued
January 6, 1969, upheld a requirement that voters in a school elec
tion be either real property owners, their spouses, school district
lessees (but not their spouses) or parents or guardians of children
attending district schools, 282 F. Supp. 70 (E. D. N. Y. 1968); see
also 259 F. Supp. 164 (E. D. N. Y. 1966). While appellants be
lieve the views of the dissenting judges in these two cases are
persuasive, these decisions in no way affect the question before
the Court here. In Kramer, instead of the broad restriction to
freeholders authorized by Georgia, New York law permitted par
ents, guardians, and le.ssees to vote, as well as those who own
taxable real property and their spouses. In Houma, the vote did
not concern public schools but only the relatively narrow ques
tion of whether to issue utility revenue bonds, a decision which
also was subject to approval of the generally elected municipal
government body.
52
624, 644 (1943); Harper, supra at 383 U. S. 668. In order
to satisfy the requirement of “compelling interest” the
state must demonstrate all of the following: (1) That
the restriction imposed rationally relates to legitimate
governmental objectives sought; (2) that the benefit to
the public of those objectives outweighs the impairment
of the constitutional right and that (3) no alternative
means less subversive of the constitutional right are avail
able. See Keyishian v. Board of Regents, 385 U. S. 589
(1967); Griswold v. Connecticut, 381 U. S. 479 (1965);
N. A. A. C. P. V. Alabama, 377 U. S. 288 (1964); Aptheher v.
Secretary of State, 378 U. S. 500 (1964); Sherbert v. Verner,
supra; Edivards v. South Carolina, 372 U. S. 229, 238
(1963); N. A. A. C. P. v. Button, supra, at 433; Shelton
V. Tucher, 364 U. S. 479, 488 (1960); Thomas v. Collins,
323 U. S. 516, 530 (1945); Schneider v. State, 308 U. S. 147,
161 (1939); Symposium on the Griswold Case and the Bight
of Privacy, 64 Mich. L. Rev. 197 (1965).
The freeholder limitation is in no way supported by such
a justification. The piirpose of the provision is not ex
pressed, but in the nineteenth century, when it was en
acted, it was thought by many that only owners of real
property were sufficiently concerned about government to
exercise the duties of office. Whatever the validity of this
conclusion in the past, it is plain that today one’s interest
in, or capacity for, public affairs does not depend on
whether he is a landlord or a tenant. As Judge Wein
stein has put it:
Some premises are no longer constitutionally per
missible and legal syllogisms which embody them
must be rejected. One constitutionally unacceptable
hypothesis is that people owning rights to real prop
erty are more likely than citizens generally to exercise
53
their vote responsibly. Thus, a local policy based on
the assumption that owners of property rights are
particularly interested in school elections cannot
justify denying the right to vote to other morally and
intellectually qualified adults who meet residence re
quirements. Kramer v. Union Free School Dist. No.
15, 282 F. Supp. 70, 80 (E. D. N. T. 1968) (dissenting
opinion).
In short, the idea that only persons who hold real property
are capable of holding public office reflects an obsolete and
repudiated view of what constitutes equal protection.®*
Harper v. Virginia State Board of Elections, supra;
Landes v. Town of North Hempstead, supra; cf. McLaugh
lin V. Florida, 379 U. S. 184, 190 (1964).
Nor can the freeholder requirement be rationally justified
by a desire to limit service on boards which set tax rates
to those who pay taxes, see State ex rel. Mitchell v. Heath,
345 Mo. 226, 132 S. W. 2d 1001, 1004 (1939)—even if one
makes the dubious assumption that the public interest in
education could be totally displaced by the taxpayer’s in
terest in the use of funds that once were his.®̂ In Georgia,
the county school board has no direct taxing power but
may only recommend a tax rate to county authorities (Ga.
Code Ann. §§32-1118, 1127) and the property which is
potentially subject to taxation for school purposes is not
®* Ownership of land has even less rational relationship to quali
fications for the office of school board member than other offices
(town supervisor, county commissioner, etc.) because the school
board is concerned with a delimited set of concerns, none of which
has any relation to property holding.
®’ It should be noted that neither of the two state policies which
Mr. Justice Black, dissenting, found would support the poll tax in
Harper, 383 U. S. at 674 are available to justify the freeholder re
quirement.
54
limited to that of individual freeholders, Ga. Code Ann.
'^32-1116. Moreover, the Taliaferro school system raises
hut a small proportion of funds raised by ad valorem
taxes ($39,000 out of a total budget of $267,611) (A. 49).
The overwhelming majority of the budget is received from
the state and federal governments.
Nor need Georgia limit board membership to five free
holders to achieve even the questionable benefits one might
suppose for the freeholder requirement—as witnessed by
the fact that a non-freeholder may apparently be appointed
to a school board in those counties which have abandoned
the grand jury selection device, see infra pp. la-2a. At
any rate, other options are available to the state which do
not involve needless denial of participation in organs of
government which critically affect the public welfare. If
it is the voice of the freeholder which the state wishes to
have considered, school boards could be required to seek
the written opinion of one or more freeholders concerning
anticipated land purchases or transfers prior to making
any decision thereon. Or school boards might be directed
by statute to obtain legal counsel concerning any land
transactions. But any claimed benefits of the present free
holder requirement are clearly outweighed by the extent to
which parents of school children and other non-landed
citizens generally are totally denied access to what may be
the most important unit of local government and most
available outlet for community political expression. Cf.
Kramer v. Union Free School Fist. No. 15, supra, 282 F.
Supp. at 76-78 (dissenting opinion).
Nothing appellants urge detracts in the least from the
power of the states to assure that competent persons
administer the public schools. In Abington School District
55
V. Scliempp, 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 with a
special concern for the schools by limiting board member
ship to freeholders; on the contrary, it vests membership
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 establishment to
those who own a particular class of property.
CONCLUSION
W herefoee, appellants p ray that the judgm ent of the
court below be reversed in so fa r as it denies declaratory
and in junctive relief.
Kespectfully submitted.
J ack Greekbeeg
M ichael Meltsnee
10 Columbus Circle
New York, New York
H oward Moore
P et er R in d sk o p f
859Y2 Hunter Street, N. W.
Atlanta, Georgia
Attorneys for Appellants
N orman J . Chachkin
Of Counsel
APPENDIX
APPENDIX
Constitutional and Statutory Provisions Involved
1. Article VIII, Section V, paragraph I, of the Consti
tution of the State of Georgia of 1945, Ga. Code Ann.
'̂ 2—6801:
Establishment and maintenance; hoard of education;
election, term, etc.—Authority is granted to counties to
establish and maintain public schools within their limits.
Each county, exclusive of any independent school system
now in existence in a county, shall compose one school dis
trict and shall be confined to the control and management
of a County Board of Education. The Grand Jury of each
county shall 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 five years except that the first election of Board
members under this Constitution shall be for such terms
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 expira
tion of such member’s term of office, the Board shall by
secret ballot elect his successor, who shall hold office until
the next Grand Jury convenes at which time the said Grand
Jury shall appoint the successor member of the Board for
the unexpired term. The members of the County Board of
Education of such county shall be selected from that por
tion of the county not embraced within the territory of an
independent school district.
The General Assembly shall have authority to make pro
vision for local trustees of each school in a county system
2a
and confer authority upon them to make recommendations
as to budgets and employment of teachers and other au
thorized employees.
2. Article VIII, Section V, paragraph II, of the Consti
tution of the State of Georgia of 1945, Ga. Code Ann.
§2—6802:
Boards of education; change by referendum.—Notwith
standing provisions contained in Article VIII, Section V,
paragraph I [§2-6801] of this Constitution, or in any local
constitutional amendment applicable to any county school
district, the number of members of a county board of edu
cation, their term of office, residence requirements, com
pensation, manner of election or appointment, and the
method for filling vacancies occurring on said boards, may
hereafter be changed by local or special law conditioned
upon approval by a majority of the qualified voters of the
county school district voting in a referendum thereon. Mem
bers of county boards of education shall have such powers
and duties and such further qualifications as may be pro
vided by law.
3. Ga. Code Ann. §23—802:
Meetings of certain governing bodies to be public.—All
meetings of the governing bodies of all municipalities and
counties in this State, boards of public instruction, and all
other boards, bureaus, Authorities or commissions in the
State of Georgia, excepting grand juries, supported wholly
or in part by public funds or expending public funds, shall
be public meetings: Provided, however, that before or after
said public meetings said governing bodies, boards, bureaus.
Authorities or commissions may hold executive sessions
3a
privately but the ayes and nays of any balloting shall be
recorded at the conclusion of said executive sessions. (Acts
1965, p. 118.)
4. Ga. Code Ann. §32—901:
School districts.—Each and every county shall compose
one school district, and shall be confided to the control and
management of a county board of education. (Acts 1919,
p. 320.)
5. Ga. Code Ann. §32—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 consti
tute 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: Pro
vided, however, that no publisher of schoolbooks, nor any
agent for such publisher, nor any person who shall be
pecuniarily interested in the sale of schoolbooks, 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 education, then
the members of the county board of education of such
county shall be selected from that portion of the county
not embraced within the territory covered by such local
system. (Acts 1919, p. 320.)
4a
6. Ga. Code Aim. §32—902.1:
Selection of hoard members by grand jury .—^The mem
bers of the county boards of education in those counties
in which the grand jury selects such members pursuant
to Article VIII, Section V, Paragraph I of the Constitution
of Georgia of 1945, as amended (Sec. 2-6801), shall be
selected by the last grand jury immediately preceding the
expiration of the term of the member that the member to
be selected will replace. (Acts 1953, Nov. Sess., p. 334.)
7. Ga. Code Ann. §32—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 elementary
branches of an English education and be favorable 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 board resides, or into a dis
trict or municipality that has an independent local school
system, the member changing his residence shall immedi
ately cease to be on the board and the vacancy shall be filled
as required by law. hi otwithstanding the foregoing provi
sions 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.)
5a
8. Ga. Code Ann. §32—905:
Certificate of election; removal; vacancies.—^^^leneve^
members of a county board are elected 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 evi
dence upon Avhich to issue commissions. This statement
must give the names of the members of the board chosen
and state whom they succeed, whether the offices were
vacated by resignation, death or otherwise. The evidence
of the election of a county superintendent of schools shall
be the certified 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 address
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.)
9. Ga. Code Ann. §32—908:
Sessions.—It shall be the duty of the county board of
education to hold a regular session between the 1st and
15th of each month at the county seat for the transaction
of business pertaining to the public schools, with power to
adjourn from time to time, and in absence of the president
or secretary, they may appoint one of their own number
6a
to serve temporarily. Tlie county board of education shall
annually determine the date of the meeting of said board
and shall publish same in the official county organ for two
consecutive weeks following the setting of said date: Pro
vided further that said date shall not be changed oftener
than once in 12 months. (Acts 1919, p. 323; 1955, pp. 625,
626.)
10. Ga. Code Ann. §32—909:
School property and facilities.—The county boards of
education shall have the power to purchase, lease, or rent
school sites; build, repair or rent school houses, purchase
maps, globes, and school furniture, and make all arrange
ments necessary to the efficient operation of the schools.
The said boards are invested with the title, care and cus
tody of all schoolhouses or other property, with power to
control the same in such manner as they think will best
serve the interests of the common schools; and when, in
the opinion of the board, any schoolhouse site has become
unnecessary or inconvenient, they may sell the same in
the name of the county board of education, and said county
boards of education may convey any schoolhouse site or
building, which has become unnecessary or inconvenient for
county school purposes and which is located in a munic
ipality, to the municipality wherein said site or building
is located to be used by said municipality for educational or
recreational purposes in consideration for the munici
pality’s promise and agreement to maintain and keep said
property in repair and insured against loss by fire and
windstorm; such conveyance to be executed by the presi
dent or secretary of the board, according to the order of
the board. They shall have the power to receive any gift,
grant, donation or devise made for the use of the common
7a
schools Avithin the respective counties, and all conveyances
of real estate which may be made to said board shall vest
the property in said board of education and their successors
in office. In respect to the building of schoolhouses, the said
hoard of education may provide for the same by a tax on
all property located in the county and outside the terri
torial limits of any independent school system. The con
struction of all public school buildings must he approved
by the superintendent and board of education and must be
according to the plans furnished by the county school au
thorities and the State Board of Education. (Acts 1919,
p. 323; 1937, pp. 882, 892; 1946, pp. 206, 207; 1961, pp.
35, 38; 1962, pp. 654, 655.)
11. Ga. Code Ann. §32—1101:
Each county to compose one school district; management
hy county hoard of education.—Pursuant to the amendment
to the Constitution adopted in 1945, each county of this
State, exclusive of any independent 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. (Acts 1919, p. 333; 1946, pp. 206, 209.)
12. Ga. Code Ann. §32—1118:
Other provisions made applicable. County Board to rec
ommend school tax rate to fiscal authorities.—All of the
other provisions of Chapter 92-27, so far as they can be
applied are applicable to the assessment and collection of
taxes of all such companies and corporations which are
required by law to make their returns to the State Eevenue
Commissioner by and for school districts upon the prop
erty and franchises of such companies located in such school
districts and upon the rolling stock, franchises and other
8a
personal property distributed under the provisions of this
Chapter. The county board of education shall annually
recommend to the fiscal authorities of the county the rate
of levy to be made for taxes for the support and mainte
nance of education in the county (exclusive of property
located in independent school districts), and likewise notify
the State Eevenue Commissioner of the rate of the levy
to be made on such property in said county for the support
and maintenance of education. (Acts 1919, p. 343; 1946,
pp. 206, 212.)
13. Ga. Code Ann. '̂ 32—1127:
Power to levy and collect taxes.—Power is hereby dele
gated to, and conferred upon, the several counties to levy
and collect taxes for educational purposes in such amounts
as the county authorities shall determine, the same to be
appropriated to the use of the county board of education,
and the educational work directed by them. (Acts 1922,
pp. 81, 82.)
14. Ga. Code Ann. §59—101:
Jury commissioners; appointment; number; qualifica
tions; 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 be appointed for two years,
two for four years, and two for six years, and their suc
cessors shall be appointed for six years. The judge shall
have the right to remove said commissioners at any time,
in his discretion, for cause, and appoint a successor: Pro-
9a
vided, that no person shall be eligible or appointed to
succeed 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.)
15. Ga. Code Ann. §59—106:
Revision of jury lists. Selection of grand and traverse
jurors.—At least biennially, or, if the judge of the superior
court shall direct, at least annually, on the first Monday in
August, or within 60 days thereafter, the board of jury
commissioners shall compile and maintain and revise a
jury list of intelligent and upright citizens of the county
to serve as jurors. In composing such list the commis
sioners shall select a fairly representative cross-section of
the intelligent and upright citizens of the county from the
official registered voters’ list which was used in the last pre
ceding 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 intelligent and upright
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 in
telligent and upright citizens of any significantly iden
tifiable group in the county which may not be fairly repre
sentative thereon.
After selecting the citizens to serve as jurors, the jury
commissioners shall select from the jury list a sufficient
number of the most experienced, intelligent and upright
citizens, not exceeding two-fifths of the whole 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 coimty, except
10a
as otherwise provided herein, and no new names shall
be added until those names originally selected have been
completely exhausted, except when a name which has al
ready 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.
16. Ga. Code Ann. §59—202:
Number of grand jurors.—A grand jury shall consist
of not less than 16 nor more than 23 persons. (Cobb, 547.
Acts 1869, p. 140; 1967, pp. 590, 591.)
17. Ga. Code Ann. §59—203:
Manner of drawing.—The judges of the superior courts,
at the close of each term, in open court, shall unlock the box,
and break the seal, and cause to he drawn from compart
ment number “one” not less than 18 nor more than 36 names
to serve as grand jurors at the next term of the court; all
of which names shall be deposited in compartment number
“two” ; and when all the names shall have been drawn out
of the compartment number “one,” then the drawing shall
commence from compartment number “two,” and the tickets
be returned to number “one,” and so on alternately; and
no name so deposited in the box shall, on any pretense
whatever, be thrown out of it, or destroyed, except when it
shall be satisfactorily shown to the judge that the juror is
dead, removed out of the county, or otherwise disqualified
by law. (Acts 1869, p. 140; 1874, p. 20; 1966, p. 470.)
18. Ga. Code Ann. §59—318:
Selection of persons for offices by grand jury; notice.—
Whenever it is provided by law that the grand jury of any
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county shall elect, select or appoint any person to any office,
notice thereof shall be given in the manner hereinafter
provided. (Acts 1958, p. 686; 1959, p. 424.)
19. Ga. Code Ann. §59—319:
Same; publication.—It shall be the duty of the clerk of
the superior court to publish in the official organ of the
county a notice that certain officers are to be elected, se
lected or appointed by the grand jury of said county. Such
publication shall be made once a week for two weeks during
a period not sooner than 60 days prior to such election,
selection or appointment. The cost of such advertisement
shall be paid from the funds of the county, and it shall be
the duty of the governing authority of the county to
promptly pay said cost. (Acts 1958, pp. 686, 687; 1959,
pp. 424, 425.)
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