Florida v. Board of Control Transcript of Record

    1ST THE

dom*t nf Xht States
October Term, 1946

No.

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

WILLIAM P. MITCHELL,
Respondent.

s*3(c 31®̂

M EM ORANDUM  BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

£■'<3(6 1W*

T hurgood Marshal.!., 
A rthur D. Shores, 

Counsel for Respondent.

R obert L. Carter,
of Counsel.



SUBJECT INDEX

PAGE

Statement of Case----------- ----- ----------------------------------  2
Questions Presented............................... - ------- --—  5
Summary of Argument---------------------    6
Argument ---------   7
I. The Decision of the Court that Failure to Pursue 

or Exhaust Remedy Provided Under State Law 
Which Is In the Nature of a Conventional Judicial 
Remedy Does Not Oust the Federal Courts Is Con­
sistent. With Precedents of This Court----------------  7

IT. The Characterization of The Remedy Afforded 
Under Table 17, Section 35, Alabama Code of 1940,
By The Circuit Court of Appeals, As A Judicial 
Remedy Is Clearly Right ------- ------------------ -----  8

Conclusion________L—.----------------------------------------------  11

Table of Cases

Bacon v. Rutland R. Co., 232 U. S. 134 ------- ----------------8,10
Henderson Water Company v. Corporation Commis­

sion, 269 U. S. 279______________________ __ _______  7
Lane v. Wilson, 307 U. S. 268— ...-------------- ,.---------- -------  8
Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300------ 7
Pacific Telephone & Telegraph Co. v. Kuykendall, 265

U. S. 196_________ ________________________________  7, 8
Porter v. Investors Syndicate, 286 U. S. 461, aff’d on

rehearing 287 U. S. 346------------------------------- -------  7, 8
Prentiss v. Atlantic Coast Line Co., 211 U. S. 210 -------7,10
Railroad & Warehouse Commission v. Duluth Street 

R. Co., 273 U. S. 625___________________________ __- 7
State Corporation Commission v. Wichita, 290 U. S. 561 8
United States v. Sing Tuck, 194 U. S. 161--------------------  7



11

United States Constitution
PAGE

Article I, Section 2______ __________________________ 6
Amendment X IV  ..._______________________________ 6
Amendment X V __________________________________  6
Amendment X V II ....___________________________ _ 2, 6

Alabama Constitution

Section 177, Article V III____________________________  2
Section 178, Article V III______________________ ______  2
Section 181, Article VIII- ___________________________ 2
Section 182, Article V III__ ___      2
Section 186, Article V III____________________________  2

Statutes

Section 31, Title 8, U. S. Code_________________ ______  6
Section 43, Title 8, U. S. Code________________________ 6
Section 41 (11) (14), Title 28, U. S. Code________ ......... 6
Section 32, Title 17, Alabama Code of 1940 ___________ 2
Section 35, Title 17, Alabama Code of 1940___________  6, 8
26 Okla. Stat., Sec. 74____ ...__________________________  10



IN THE

0itpmn? (Enurt of th? Unttpft States
Octobee T eem, 1946

No.

Mrs. George C. W right, et al.,
Petitioners,

v.

W illiam P. Mitchell,
Respondent,

MEMORANDUM BRIEF IN OPPOSITION TO  
PETITION FOR W RIT OF CERTIORARI

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of the 
United States:

Respondent opposes the granting of a writ of certiorari 
in this case on the grounds that the decision of the Circuit 
Court of Appeals for the Fifth Circuit is correct, proper 
and consistent with prior decisions and precedents of this 
Court. Petitioners seek a review here of a judgment ren­
dered upon the pleadings. The judgment of the Circuit 
Court of Appeals does not accomplish a final disposition of 
respondent’s cause but merely decides that the amended 
complaint states a valid cause of action and provides 
grounds legally sufficient for a trial of the controversy to 
determine the actual merits of the case.



2

Statement of the Case

Respondent, as plaintiff in the District Court of the 
United States for the Middle District of Alabama, filed his 
complaint against the defendant Board of Registrars, peti­
tioners herein, seeking five thousand ($5,000) dollars in 
damages, a permanent injunction against, and a judgment 
declaratory of, an alleged unconstitutional policy, custom 
and usage of the defendant Board of Registrars and their 
predecessors in office in subjecting- Negroes to tests not 
required of whites, and in refusing to register qualified 
Negro electors, while at the same time registering white 
persons less qualified than Negro applicants, because of 
race or color.

Respondent, a colored person of African descent, duly 
meets all the requirements for registration and voting- 
under the Constitution and laws of the United States and 
the State of Alabama.1 He is a citizen of the United States 
and a bona fide resident of the State of Alabama. He is 
over 21 years of age. He is neither an idiot nor insane and 
has not been convicted of any felony or crime. He is a 
taxpayer of the State and paid taxes in full on real prop­
erty with an evaluation in excess of three hundred ($300.00) 
dollars prior to the time he offered to register. In short, 
respondent possesses all the qualifications and none of the 
disqualifications for registering and voting under the laws 
of the United States and of the State of Alabama (R. 5).

On July 5, 1945, respondent made due application to 
petitioners, the official registrars of voters of Macon 
County, for registration in order to be eligible to vote in

1 The Constitution of the United States, Article I, Sections 2 and 
4, the 17th Amendment, and the Constitution of Alabama, Article 
VIII, Sections 177, 178, 181, 182, 186; Alabama Code of 1940, Sec­
tion 32, Title 17.



3

future federal as well as state elections. Respondent was 
refused registration solely on account of his race or color 
after being required to answer questions and to produce 
two persons to vouch for him, while white persons were 
being registered forthwith without being subjected to such 
tests, all pursuant to a general, habitual and systematic dis­
criminatory practice of petitioners (R. 6).

Respondent did not bring this cause of action because 
of the sole act of the petitioners in refusing him registra­
tion but instituted suit to contest the constitutionality of a 
policy, custom and usage established by petitioners’ prede­
cessors in office and maintained by them to prevent Negroes 
from registering and voting in the county of Macon. The 
core of respondent’s amended complaint may be found in 
Paragraphs 6, 9, 10 and 11 thereof, where it is alleged:

“ 6.

Plaintiff, William P. Mitchell, is colored, a per­
son of African descent and Negro blood, is over the 
age of twenty-one years. He is a taxpayer of the 
State of Alabama, and pays tax on real property with 
an assessed valuation in excess of Three Hundred 
Dollars. Plaintiff alleges that he is able to read and 
write any passage of the United States Constitution, 
that he has never been adjudged guilty of felony or 
any crime and that he is not an idiot or insane. 
Plaintiff further alleges that by reason of the alle­
gation herein above made, he was in all particulars 
on the 5th day of July, 1945, and still is possessed 
of the qualifications of an elector and as such was 
and is entitled to be registered as such elector.”

” 9.
That defendants have established and are main­

taining a policy custom and usage of denying to 
plaintiff and others on whose behalf this suit is



4

brought the equal protection of the laws by requiring 
them to submit to tests not required of white elec­
tors applying for registration and have continued 
the policy of refusing to register qualified Negro 
electors while at the same time registering white 
electors with less qualifications than those of Negro 
applicants solely because of race or color.”

“ 10.

That on or about the 5th day of July, 1945, dur­
ing the regular registration period while defendants, 
Mrs. George C. Wright and Virgil M. Guthrie, were 
acting as registrars of voters under the laws of 
Alabama in conducting the registration of persons 
qualified to register, plaintiff made application at the 
Macon County Court House, the place for registra­
tion of persons qualified to register, he filled out the 
regular form for registration, he produced two per­
sons to vouch for him, as required by the board, he 
correctly answered such questions as were asked in 
proof of his qualifications, and was ready, willing 
and able to give any further information and evi­
dence necessary to entitle him to be registered; that 
by reason of the said fact hereinbefore made, plain­
tiff was entitled to be registered as a voter. Plain­
tiff applied for registration in order to be eligible to 
vote in future federal as well as state elections.”

“ 11.

Plaintiff further shows that during such regis­
tration period and on or about the 5th day of July, 
1945, white persons presenting themselves for regis­
tration were not required to present persons to 
vouch for them, but were registered forthwith, where­
as your petitioner solely because of his race and 
color was required to wait long hours before being- 
permitted to file his application, was required to 
present persons to vouch for him, after which the 
said defendants denied plaintiff application and



wrongfully refused and illegally failed to register 
plaintiff on said July 5, 1945, solely on account of 
his race, color and previous condition of servitude. 
Plaintiff further states that it has become the gen­
eral habitual and systematic practice of said Board 
of Registrars, including these defendants, Mrs. 
George C. Wright and Virgil M. Guthrie, and their 
predecessors in office to refuse to register Negro 
residents of Macon County, including the plaintiff, 
William P. Mitchell.”

The cause was heard in the District Court upon a motion 
to dismiss the amended complaint on the ground that said 
complaint failed to state a cause of action. Upon the hear­
ing of said motion, the District Court sustained petitioners ’ 
motion to dismiss and issued an order dismissing the com­
plaint. From that order respondent appealed. The Circuit 
Court of Appeals for the Fifth Circuit reversed the judg­
ment of the District Court and remanded the cause.

Questions Presented

I. Where a Registrar or Board of Registrars of 
Voters, Pursuant to a Policy, Custom and Usage, Sub­
jects Respondent and All Other Qualified Negro 
Applicants to Tests Not Required of White Appli­
cants Who Apply for Registration in Order to 
Qualify to Vote in Forthcoming Federal and State 
Elections Can Relief Be Sought in the Federal Courts 
in the Form of a Class Action Seeking Declaratory 
Judgment and Injunction Restraining Such Registrar 
or Board of Registrars from Subjecting Negroes to 
Tests Not Required of White Applicants, Without 
First Exhausting Remedies Under State Law?



6

II. Does the Action of a Registrar or Board of 
Registrars of Voters, in Refusing to Register Respon­
dent and Other Qualified Negro Applicants on Ac­
count of Race and Color, Amount to a Deprivation 
of the Rights Secured Under the Laws and Constitu­
tion of the United States, Namely Article I, Section 2, 
14th, 15th and 17th Amendments to the Constitution, 
Subdivisions 11 and 14 of Section 41 of Title 28, 
Sections 31 and 43 of Title 8 of the United States 
Code.

Summary of Argument

I

The Decision of the Circuit Court of Appeals That 
Failure to Pursue or Exhaust the Remedy Provided Under 
State Law in the Nature of a Conventional Judicial Pro­

ceeding Does Not Oust the Federal Courts of Jurisdiction 
Is Consistent with Precedents of This Court.

II

The Characterization of the Remedy Afforded Under 
Title 17, Section 35, Alabama Code of 1940, by the Circuit 
Court of Appeals as a Judicial Remedy Is Clearly Right.



7

A R G U M E N T

I

The Decision of the Circuit Court of Appeals 
That Failure to Pursue or Exhaust the Rem­
edy Provided Under State Law in the Nature 
of a Conventional Judicial Proceeding Does 
Not Oust the Federal Courts of Jurisdiction Is 
Consistent with Precedents of This Court.

This Court has been careful to make a distinction be­
tween judicial and administrative remedies in determining 
whether the remedies in question need be exhausted before 
application can be made to federal courts for relief. When 
the remedy is administrative or legislative, the rule of this 
Court is that the state remedy must be pursued and com­
pleted before the aggrieved party can have any standing in 
the federal courts. Natural Gas Pipeline Co. v. Slattery;2 3 
Porter v. Investors Syndicate;8 Railroad d  Warehouse 
Commission Co. v. Duluth Street R. Co.;4 Henderson Water 
Company v. Corporation Commission;5 * Pacific Telephone <& 
Telegraph Company v. Kuykendall;e Prentiss v. Atlantic 
Coastline Company;7 United States v. Sing Tuck.9

On the other hand, remedies provided under state law 
that are judicial in nature need not be invoked or pursued 
before an action can be maintained in the federal courts.

2 302 U. S. 300.
3 286 U. S. 461; aff’d on rehearing, 287 U. S. 346.
4 273 U. S. 625.
B 269 U. S. 279.
0 265 U. S, 196.
7 211 U. S. 210.
8 194 U. S. 161.



8

State Corporation Commission v. Wichita; 9 Porter v. In­
vestors Syndicate, supra; Bacon v. Rutland R. Co. ; 10 Lane 
v. Wilson; 11 Pacific Telephone & Telegraph Company v. 
Kuykendall, supra.

Whenever the question has been presented, this Court 
has carefully examined the remedy provided to determine 
whether it was legislative or judicial in nature. Prentiss 
v. Atlantic Coastline Co., supra; Lane v. Wilson, supra; 
Pacific Telephone & Telegraph Company v. Kuykendall, 
supra; Porter v. Investors Syndicate, supra.

The Circuit Court of Appeals in applying the rule that 
judicial remedies need not be exhausted before application 
can be made to the federal courts was following a well- 
established rule of law consistently adhered to in the deci­
sions of this Tribunal. There is, therefore, no basis or rea­
son for this Court to review or examine the decision of 
the court below.

II

The Characterization of the Remedy Afforded 
Under Title 17, Section 35, Alabama Code of 
1940, by the Circuit Court of Appeals as a 

Judicial Remedy Is Clearly Right.

Under Section 35, Title 17 of the Alabama Code of 1940, 
a right of appeal is provided when registration is denied. 
The pertinent provisions of the statute are set out below:

“ Any person to whom registration is denied shall 
have the right to appeal, without giving security for 9 10 11

9 290 U. S. 561.
10 232 U. S. 134.
11 307 U. S. 268.



9

costs, within thirty days after such denial, by filing 
a petition in the circuit Court or Court of like juris­
diction held for the county in which he or she seeks 
to register, to have his or her qualifications as an 
elector determined. Upon the filing of the petition, 
the clerk of the Court shall give notice thereof to 
the solicitor authorized to represent the state in said 
county, who shall appeal and defend against the peti­
tion on behalf of the state. Upon such trial the Court 
shall charge the jury only as to what constitutes the 
qualifications that entitle the applicant to become an 
elector at the time he or she applied for registration, 
and the jury shall determine the weight and effect 
of the evidence, and return a verdict. From the 
judgment rendered an appeal will lie to the supreme 
Court in favor of the petition to be taken within 
thirty days. Final judgment in favor of the peti­
tioner shall entitle him or her to registration as of 
the date of his or her application to the registrars.”

The remedy therein provided is the type traditionally con­
sidered judicial. The aggrieved parties may go into a cir­
cuit court or court of like jurisdiction in the county in which 
he seeks to have his registration determined. Trial by jury 
is provided, and the court is required to charge the jury 
as to what constitutes the qualifications necessary for an 
applicant to become an elector at the time of his application 
for registration. The jury is required to determine the 
weight and effect of the evidence and return a verdict. 
From an adverse decision the aggrieved party may take an 
appeal to the Supreme Court of the State of Alabama.

Under this statute, the court has no initiatory func­
tions. The proceedings must be commenced by the ag­
grieved person who contests the decision of the Board of 
Registrars. Normally administrative agencies are not so 
circumscribed but have the authority to commence a hear­
ing on their own application, to call parties before them and



10

to make a determination of the issues involved. Prentiss v. 
Atlantic Coastline Co., supra. A  court merely has the 
authority to declare and enforce liabilities, rights and duties 
as they exist on present or past facts and under a rule of 
law already operative: Legislative functions, on the con­
trary, have an element of futurity and generality which is 
not characteristic of judicial inquiries. Prentiss v. Atlantic 
Coastline Company, supra.

The remedy provided herein is similar in nature to that 
provided under the Oklahoma statute in the case of Lane 
v. Wilson, supra, which this Court characterized as judi­
cial.12 The Circuit Court of Appeals has gone thoroughly 
into this phase of the proceedings. A substantial portion 
of the majority opinion and the entire concurring opinion 
are devoted to a careful analysis of the state remedy pro­
vided and to a determination of its classification as admin­
istrative or judicial. In deciding that it was a judicial 
remedy, the Circuit Court of Appeals was merely following 
the rules and the yardstick which this Court has consistently 
used in making such determination in previous decisions.

12 The Oklahoma Statute (26 Okla. Stat. Sec. 74) provided in 
part: “ and provided further, that wherever any elector is refused 
registration by any registration officer such action may be reviewed 
by the district court of the county by the aggrieved elector by his 
filing within ten days a petition with the Clerk of said Court, where­
upon summons shall be issued to said registrar requiring him to 
answer within ten days, and the district court shall be a (give an) 
expeditious hearing and from his judgment an appeal will lie at the 
instance of either party to the Supreme Court of the State as in civil 
cases. * * * ”



11

Conclusion.

The decision of the Circuit Court of Appeals is neither 
ambig’uous nor confused. It in essence holds that the com­
plaint states a cause of action and that federal courts have 
jurisdiction to grant the relief applied for upon proof that 
such relief is warranted according to the facts and evidence 
adduced in a trial on the merits. Under these circum­
stances, the public interest and the interest of the litigators 
will be best served by refusing to grant the writ of cer­
tiorari as prayed for by petitioners and by allowing a com­
plete adjudication of all the issues involved in this litiga­
tion in a trial on the merits as ordered by the Circuit Court 
of Appeals.

W herefore, for the reasons hereinabove advanced, the 
petition for writ o f certiorari should be denied.

Respectfully submitted,

T htjrgood Marshall, 
A rthur D. Shores, 

Counsel for Respondent.

R obert L. Carter,
of Counsel.



L a w y e r s  P r e ss , I n c ., 165 William St., N. Y. C.; 'Phone: BEekman 3-2300