Nixon v. Condon Petition for Writ of Certiorari and Brief in Support of Petition

    &uprpm? (Emtrt nf tlj? In \Ub >̂tat?a
October Term, 1931.

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

L. A. NIXON, 

against
Petitioner,

JAMES CONDON and C. H. KOLLE,

Respondents.

PETITION FOR WRIT OF CERTIORARI AND 
BRIEF IN SUPPORT OF PETITION.

Arthur B. Spingarn, 
J ames Marshall,
N athan  B. Margold,
F red C. K nollenberg,
E. F. Cameron,

Petitioner’s Counsel.



I N D E X .

PAGE

P etition for W rit of Certiorari......... ..........................  1
Statute and Resolution in Question....................... 2
Petitioner’s Injury....................................................  3
Jurisdiction................................................................... ^
Decision of District Court.......................................  6
Decision of Circuit Court of Appeals..................... 7

Certificate of Counsel for W rit-----

B rief for P etitioner.................................
Preliminary Statement...................
Jurisdiction........................................
Grounds on Which Writ is Sought

9

11
11
14
16

P oints :
I. The decision of the Circuit Court of Appeals in 

this case is in conflict with the applicable de­
cisions of this Court...............................................

(A) Under the authority of Nixon v. Hern­
don and other cases, Chapter 67 of the 
Laws of 1927 of Texas and the resolu­
tion of the Democratic State Execu­
tive Committee adopted under dele­
gation of authority from the Texas 
Legislature are unconstitutional and 
void under the Fourteenth and Fif­
teenth Amendments to the Constitu­
tion of the United States................ • • 17

(i) Analysis of the Texas statutes 
and the attempt to nullify 
Nixon v. Herndon................... 19



(ii) State Executive Committee as
an agency of the Legislature. 21

(iii) The “inherent power” argu­
ment............................................  23

(iv) Texas cases defining legislative
and party powers....................  24

(B) The respondents in refusing to permit 
the petitioner to vote were acting in 
their official capacities as state offi­
cers, because they were applying state 
powers to a public purpose. Under 
doctrine of Home Tel. & Tel. Co. v. 
Los Angeles, their conduct violated 
the constitutional rights of the peti­
tioner irrespective of the validity of
Chapter 67 of the Laws of 1927.......  28

(i) Powers vested in judges of elec­
tion ............................................  29

(ii) Acts of respondents attributa­
ble to state............................... 31

II. The decision of the Circuit Court of Appeals in 
this case is in conflict with the decision of the 
Circuit Court of Appeals for the Fourth Cir­
cuit in Bliley v. W est...........................................  34

III. The action of the respondents was in violation 
of Section 31 of Title 8 of the United States 
Code........................................................................... 36

IY. This Court should assume jurisdiction of this 
case by writ of certiorari because of the im­
portance of the question raised........................... 37



Ill

CASES CITED.

Anderson v. Ashe, C>2 Tex. Civ. App. 262, 130 8. W.
PAGE

1044..................................................................................... 23
Ashby v. White, 2 Ld. Ravin. 938, 3 id. 320..................  18
Ashford v. Goodwin, 103 Tex. 491, 131 S. W. 535........  23

Bindernp v. Pathe Exchange, 263 U. S. 291................  16
Bliley v. West, 42 Fed. (2nd) 101...........................7,16,34
Briscoe v. Boyle (Tex.), 286 S. W. 275.......... 23,24,26,27

Child Labor Tax Case, 259 TJ. S. 20............................... 21
Commonwealth v. Willcox, 111 Va, 849......................  34

Ford v. Snrgett, 97 U. S. 594.........................................  22

General Investment Co. v. X. Y. Central R. R. Co.,
271 U. S. 22S.................................................................... 16

Giles v. Harris, 189 U. S. 475.........................................  18
Guinn v. United States, 238 U. S. 347.........................21, 39

Hammer v. Dagenliart, 247 U. S. 251............................ 21
Hendricks v. State of Texas, 20 Tex. Civ. App. 1 7 8 ... 33
Home Tel. & Tel. Co. v. Los Angeles, 227 IT. S. 278..

8, 22, 28, 31

Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120. . . .  33
King Mfg. Co. v. Augusta, 277 U. S. 100.....................22,31

Lincoln v. Hapgood, 11 Mass. 350................................... 33
Lindgren v. United States, 281 U. S. 38......................... 24
Love v. Griffith, 266 TJ. S. 32...................................27,28,39
Love v. Wilcox (Tex.), 28 S. W. (2nd) 515. .23, 24, 27, 30

Myers v. Anderson, 238 U. S. 368.................................16, 21
Xewberry v. United States, 256 U. S. 232..................... 37



IV

Nixon v. Condon:
34 Fed. (2nd) 464 (District Court).......................... 6,13
..  Fed. (2nd) . . .  (Circuit Court)............................  35

Nixon v. Herndon, 273 TJ. S. 536. .2, 7, 8 ,13,16,17,18,19,
22, 23, 26, 27, 35, 38

Standard Scale Co. v. Farrell, 249 U. S. 571............ 22,31
State ex rel. Moore v. Meharg (Tex. Civ. App.), 287

S. W. 670.......................................................................... 37
Swafford v. Templeton, 185 U. S. 487........................ 16, 37

Turney v. Ohio, 273 I T .  S. 510...........................................  33

Waples v. Marrast, 108 Tex. 5, 184 S. W. 181..............  22
West v. Bliley, 42 Fed. (2nd) 101, aff’g 33 Fed. (2nd)

177 ................................................................... .7, 8,16, 36, 39
White v. Lubbock (Tex. Civ. App.), 30 S. W. (2nd)

722 . .  ................................................................................. 22
Wiley v. Sinkler, 179 IT. S. 58.................................16,18, 37
Williams v. Bruffy, 96 IT. S. 176..................................... 22
Willis v. Owen, 43 Tex. 41.................................................  33

Yicli Wo v. Hopkins, 118 U. S. 356...................................  38

PAGE

TEXTS AND NOTES.

American Law Reports, Vol. 53, p. 595.........................
“Commerce Clause and Police Power,” Thomas Reed

Powell, 12 Minn. Law Rev. 321, 470...........................
“Disenfranchisement of the Negro at the Primaries,”

Meyer M. Brown, 23 Mich. Law Rev. 279.............. 2.
“Primary Elections,” Merriam & Overacker (1928 

E d itio n )...........................................................................



V

REFERENCES TO CONSTITUTION.

Constitution of the United States:
Fourteenth Amendment............................ 6, 7,13,17,18
Fifteenth Amendment........ ......................6, 7,13,17,18

UNITED STATES STATUTORY REFERENCES.

Judicial Code:
Section 24 (1 ).............................................................5,14
Section 24 (11).................................................... 5,14,18
Section 24 (12).................................................... 5,14, IS

* Section 24 (14).................................................... 5,14,18
Section 240................................................................... 2,16

Revised Statutes:
Section 2004.................................................................  6

United States Code:
Title 8, Section 31................................................5,15,36
Title 8, Section 43...................................................... 5,15
Title 28, Section 41 ( 1 ) ............................ 5 ,13,14,18
Title 28, Section 41 .(1 1 )............................ 5 ,13,14,18
Title 28, Section 41 (1 2 )............................ 5,13,14,18
Title 28, Section 41 (1 4 ) ............................ 5 ,13,14,18
Title 28, Section 347..............................................2 ,5 ,16

PAGE

Supreme Court Rules: 
Rule 28, par. 5 (b) 8



VI

TEXAS STATUTORY REFERENCES.

Revised Civil Statutes of 1925:
Elections—Chapter 8 .................................................  29
Elections—Chapter 13..............................................12,21
Elections—Chapter 13, Article 3105................... 29,30
Elections—Chapter 13...................................... 12, 20, 21
Elections—Chapter 13, Article 3093-a (former 

Article 3107)...........................................................2,17
Elections—Chapter 13, Article 3107 (Chap. 67,

Laws of 1927).................. 2, 3, 4, 5, 6, 7,12, 13,17,19,
22,23, 24, 25, 26, 27, 28, 38

Resolution‘of Democratic State Executive Commit­
tee......................................................................... 4, 5,12, 27



PETITION FOR WRIT OF CERTIORARI TO UNITED 
STATES CIRCUIT COURT OF APPEALS FOR 

THE FIFTH CIRCUIT.

(Enurt of tlip T&mttb States
October Term, 1931.

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

L. A. N ixon ,
Petitioner,

against

J ames Condon and C. H. K olle,
Respondents.

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

The petitioner above named hereby respectfully applies 
for a writ of certiorari whereby the United States Circuit 
Court of Appeals for the Fifth Circuit will be required 
to certify to this Honorable Court for its review the tran­
script of record in the case entitled “L. A. Nixon, Appel­
lant, versus James Condon and C. H. Kolle, Appellees, 
No. 5758,” in which the said Circuit Court of Appeals on 
May 16, 1931, affirmed a judgment rendered on July 31, 
1929, by the United States District Court for the Western 
District of Texas, El Paso Division, which dismissed the 
petition, filed therein by the petitioner in an action to 
recover damages from the respondents for their wrongful 
refusal to permit him to vote at a Democratic primary elec­
tion at which they were the duly appointed judges. In



support hereof (under §347, Title 28, U. S. Code; Judicial 
Code, §240) your petitioner respectfully alleges:

F ir st: On March 7, 1927, this Honorable Court, in 
Nixon v. Herndon et al., 273 U. S. 536, held your petitioner 
entitled to recover dalnages against election officials who 
had refused to permit him to vote at a Democratic primary 
election in Texas because he was a Negro and who claimed 
that he was expressly prohibited from participating there­
in by Article 3107 of Chapter 13 of the Revised Civil Stat­
utes of Texas, originally enacted in 1923 as Article 3093-a 
thereof. This Honorable Court held (a) that “the same 
reasons that allow a recovery for denying the plaintiff a 
vote at a final election allow it for denying a vote at the 
primary election that may determine the final result” ; 
(b) that Article 3107 (3093-a), under which the judges 
had purported to act, was clearly invalid as a violation of 
the Fourteenth Amendment to the Constitution of the 
United States and therefore afforded them no defense; 
and (c) that your petitioner could maintain the action 
against them in a District Court of the United States 
despite the fact that the parties therein were all citizens 
of the State of Texas.

Statute and Resolution in Question.

Second: Immediately after the decision of this Honor­
able Court, and as your petitioner verily believes, in 
order to circumvent and destroy its effect in establishing 
the constitutional right of Negro citizens of Texas not to 
be excluded from primary elections therein solely because 
of their color, the Legislature of the State of Texas, by 
Chapter 67 of the Laws of 1927, approved June 7, 1927, 
enacted as follows:

“Section 1. That Article 3107 of Chapter 13 of 
the Revised Civil Statutes of Texas be and the same 
is hereby repealed and a new article is hereby en­
acted so as to hereafter read as follows:



3

'Article 3107. Every political party in this 
State through its State Executive Committee shall 
have the power to prescribe the qualifications of 
its own members and shall in its own way deter­
mine who shall be qualified to vote or otherwise 
participate in such political party; provided that 
no person shall ever be denied the right to par­
ticipate in a primary in this State because of 
former political views or affiliations or because of 
membership or non-membership in organizations 
other than the political party.’
Sec. 2. The fact that the Supreme Court of the 

United States has recently held Article 3107 in­
valid, creates an emergency and an imperative pub­
lic necessity that the Constitutional Rule requiring 
bills to be read on three several days in each House 
be suspended and said rule is hereby suspended, and 
that this Act shall take effect and be in force from 
and after its passage, and it is so enacted.” (Italics 
petitioner’s.)

Th ir d : Thereafter, purporting to act pursuant to the 
authority conferred by Chapter 67 of the Laws of 1927 as 
aforesaid, the State Executive Committee of the Demo­
cratic Party in Texas adopted the following resolution :

“ 'Resolved: That all white Democrats who are 
qualified and under the Constitution and laws of 
Texas and who subscribe to the statutory pledge 
provided in Article 3110, Revised Civil Statutes of 
Texas, and none other, be allowed to participate in 
the primary elections to be held July 28, 1928, and 
August 25, 1928, and further, that the Chairman 
and Secretary of the State Democratic Executive 
Committee be directed to forward to each Demo­
cratic County Chairman in Texas a copy of this 
resolution for observance.’ ”

Petitioner’s Injury.

F ourth : On July 28, 1928, a Democratic primary elec­
tion was held in the State of Texas for the purpose of 
selecting the candidates of the Democratic Party for all



4

precinct, county, district and state officers, and for repre­
sentatives in the Congress of the United States and for 
United States Senator.

F if t h : Your petitioner then was and now is a Negro 
as defined by the statutes of the State of Texas. He was 
born in the State of Texas of parents who were citizens 
of the United States. On July 28, 1928, he was a resident 
of Precinct No. 9 in the City and County of El Paso, Te$as, 
a bona fide member of the Democratic Party of the State 
of Texas, and possessed all the qualifications required un­
der the laws of Texas of voters and electors in order to 
vote in Precinct No. 9 at the said primary election. He 
also was not subject to any disqualification or disability 
to vote thereat unless the fact that he was a Negro was- 
itself a disqualification or disability depriving him of the 
right to vote at the said election.

S ix t h : On the said July 28, 1928, your petitioner duly 
presented himself at the polling place in Precinct No. 9, 
and at an hour prescribed by law for the holding of the 
said primary election, and requested the respondents Con­
don and Kolle to supply him with a ballot and permit him 
to vote. The said respondents, who were the duly ap­
pointed judges of election at the said election in the said 
Precinct No. 9, refused to furnish your petitioner with a. 
ballot or to permit him to vote, assigning as the reason 
therefor that pursuant to the resolution of the State Demo­
cratic Executive Committee of Texas, adopted under the 
authority of Chapter 67 of the Laws of 1927, the County 
Democratic Executive Committee of El Paso County, 
Texas, had instructed them to deny all Negroes the right 
to vote at the said election. The said resolution is the 
same one set forth in paragraph Third of this petition.

Jurisdiction.

S eventh : Your petitioner thereafter commenced an ac­
tion against the said respondents to recover $5,000 dam­



o

ages from them for their wrongful refusal to permit him 
to vote at the said election. This action was commenced 
in the United States District. Court for the Western Dis- 
trict of Texas, El Paso Division. The jurisdiction of the 
Court was based upon the United States Judicial Code, 
Sections 24 (1), (11), (12) and (14); 28 United States 
Code, Sections 41 (1), (11), (12) and (14) (see, also, 
8 U. S. C., Secs. 31 and 43).

E ig h t h : Your petitioner filed a petition, in the said 
action in the said District Court, setting out the facts on 
which he relied to establish the jurisdiction of the Court 
and his right of action against the respondents. In the 
said petition he alleged with greater detail all the facts 
hereinabove set forth. He also alleged, among other facts, 
that Chapter 67 of the Laws of 1927 was enacted by the 
Legislature of the State of Texas, and that the resolution 
of the State Democratic Executive Committee was adopted 
pursuant thereto, in order to defeat and destroy the effect 
of the decision of this Honorable Court, rendered in Nixon 
v. Herndon as aforesaid, and in order to deprive all Negro 
citizens in Texas, including your petitioner, of the right to 
vote at Democratic primary elections in the State of Texas, 
guaranteed and secured them by the Constitution and laws 
of the United States. He further alleged that the Demo­
cratic Party is the only party actually required under the 
laws of Texas to select its candidates by primary election; 
that its candidates are invariably elected by large majori­
ties at the final election, and that the primary election at 
which those candidates are chosen is, to all practical in­
tents and purposes, the real election which actually deter­
mines the persons who will inevitably be elected to office 
at the final election. Your petitioner further alleged that 
Chapter 67 of the Laws of 1927, and the resolution of the 
State Democratic Executive Committee, adopted pursuant 
thereto, were violative of the Fourteenth and Fifteenth 
Amendments to the Constitution of the United States, and 
contrary to the laws enacted by the Congress of the United 
States; especially including Section 31 of Title 8 of the



6

United States Code (R. S., Sec. 2004). Your petitioner 
further alleged that the action of the respondents Condon 
and Kolle as judges of the said election, in refusing him 
the right to vote at the said election, was wrongful, un­
lawful and violative of his constitutional rights, and that 
it deprived him of a valuable political right to his damage 
in the sum of $5,000.

N in t h : The respondents thereafter filed a motion in 
the said District Court to dismiss the petition in the said 
action against them. The motion, on various grounds, 
challenged the sufficiency of the facts set forth in the peti­
tion, both to establish the jurisdiction of the Court and 
the petitioner’s right of action against the respondents.

Decision of District Court.

Tenth : Hon. Charles A. Boynton, the judge who heard 
the motion in the District Court, thereafter filed a written 
opinion stating the reasons why the motion to dismiss 
should be granted. This opinion is set out on pages 23-38 
of the transcript of record, and has also been reported in 
34 F. (2nd) 464. In his opinion Judge Boynton held: 
(1) that the Fourteenth and Fifteenth Amendments to the 
Constitution of the United States cannot be violated ex­
cept by some action properly to be characterized as state 
action; (2) that Chapter 67 of the Laws of 1927 on its 
face directs no action in violation of the Federal Constitu­
tion; (3) that the action of the State Democratic Commit­
tee and the judges of election, complained of in the peti­
tion, was not state action, because (a) the members of the. 
committee and the judges of election were not paid by the 
state, and so were not like the persons officiating at the 
Illinois and Virginia primaries, who have been held liable 
in damage to qualified citizens to whom they denied the 
right to vote, (b) they were not officers of the state, (c) 
they were acting only as private representatives of the 
Democratic political party, and (d) the members of the



7

Democratic Party possess inherent power to prescribe the 
qualifications of those who may vote at its primaries, irre­
spective of and without reference to Chapter G7 of the 
Laws of 1927; and (1) that a primary election is not an 
election within the meaning of the Fifteenth Amendment, 
because (a) a political party is not a governmental agency, 
and (b) at the time the Thirteenth, Fourteenth and Fif­
teenth Amendments were adopted, primary elections were 
unknown and therefore may not be held to be covered by 
these amendments.

Decision of Circuit Court of Appeals.

E leventh: After the entry of a judgment in the said 
District Court dismissing his petition, your petitioner duly 
appealed to the United States Circuit Court of Appeals for 
the Fifth Circuit. The Circuit Court affirmed the judg­
ment below, holding, in a written opinion, (1) that the 
Fourteenth and Fifteenth Amendments apply to state ac­
tion, not to action of private individuals or associations; 
(2) that this case differs from Nixon v. Herndon, because 
there the element of state action was supplied by the 
enactment of a statute which expressly discriminated 
against Negroes, whereas here the statute merely recog­
nized an existing power- on the part of the Democratic 
State Executive Committee to fix the qualifications of its 
members; (3) that the election officials who rejected the 
petitioner were appointed by the Democratic State Execu­
tive Committee, and were not paid by the state, and (4) 
that the decision in West v. Bliley is distinguishable be­
cause there the State of Virginia conducted the primary 
and paid the expenses thereof, whereas in Texas the state 
merely regulates a privately conducted primary election so 
as to secure a fair and honest election.

Twelfth : Your petitioner respectfully submits that the 
judgment dismissing his petition in the District Court, and 
the affirmance thereof by the Circuit Court of Appeals, 
were wholly erroneous for the reasons, among others, spe­



8

cifically stated in the assignment of errors contained in 
the record (R. 1G-20) and discussed in the brief hereto 
annexed, and that this Honorable Court should grant 
the writ of certiorari prayed for herein in order to review 
and reverse the action of the courts below.

Among other grounds which here exist for granting this 
writ, your petitioner respectfully invites attention to the 
following specified in Rule 28, paragraph 5 (b) of the 
Rules of this Honorable Court: (1) The Circuit Court of 
Appeals has decided either (a) “a federal question in a 
way probably in conflict with” Nixon v. Herndon and 
Home Tel. ct- Tel. Co. v. Los Angeles, applicable decisions 
of this Honorable Court. (2) The Circuit Court of Ap­
peals “has rendered a decision-in conflict with the decision 
of another circuit court of appeals on the same matter” 
in West v. Bliley, 42 F. (2nd) 101. (3) The Circuit Court
of Appeals “has decided an important question of general 
law in a way probably untenable or in conflict with the 
weight of authority.” The existence of each of these 
grounds for granting the writ prayed for Avill become 
apparent during the course of the argument in the sup­
porting brief, annexed hereto and made a part hereof.

W herefore, your petitioner prays this Honorable Court 
to issue a writ of certiorari directing Circuit Court of 
Appeals for the Fifth Circuit to certify the record in this 
case to this Court for review and determination.

Dated, July 29, 1931.

L. A. NIXON,
Petitioner,

By J ames Marshall, 
Petitioner’s Counsel,

Office & Post Office Address,
165 Broadway, 

New York City.



9

U nited States of A merica, 
S outhern D istrict of N ew  Y ork, 
County and State of N ew  Y ork,

J ames Marshall, being duly affirmed, says that he is 
one of the counsel for L. A. Nixon, the petitioner herein, 
that he prepared the foregoing petition and that the alle­
gations thereof are true as he verily believes.

JAMES MARSHALL.

Subscribed and affirmed before me 
this 29th day of July, 1931.

N athaniel H. K ugelmass,
Notary rublic,

Kings County.
Kings Co. Clks. No. 5G0, Reg. No. 3261. 
N. Y. Co. Clks. No. 565, Reg. No. 3K370. 
Commission expires March 30, 1933:

( Seal)

Certificate of Counsel.

I hereby certify that in my opinion the foregoing Peti­
tion for Writ of Certiorari is well founded in law.

JAMES MARSHALL, 
Counsel.



Supreme (Eimrt of tlj? $nitp& States
Ootobee Term, 1931.

L. A. N ixon ,
Petitioner,

vs.

J ames Condon and C. H. Kolle,
Respondents.

BRIEF OF PETITIONER ON APPLICATION FOR 
WRIT OF CERTIORARI.

Preliminary Statement.

The petitioner, a citizen of the United States and of the 
State of Texas, brought this action in the United States 
District Court for the Western District of Texas against 
the respondents, who were judges of election in Precinct 
No. 9, El Paso County, Texas, to redress an injury which 
he sustained by reason of the acts of the respondents in 
their official capacities (R. 2).

The petitioner is a Negro. He was a bona tide member 
of the Democratic Party of the State of Texas and in every 
respect was entitled to participate in elections held within 
that state, whether for the nomination of candidates for 
office or otherwise (R. 3).

On July 28,1928, a Democratic Primary was held in the 
State of Texas to select candidates not only for state 
officers, but also for United States Senator and Congress­
men (R. 2). On that day the petitioner presented himself 
at the polls and offered to take the pledge to support the



12

nominees of the Democratic Primary Election held on that 
day and to comply in every respect with the valid require­
ments of the laws of Texas, save as they violated the privi­
leges conferred upon and guaranteed to him by the Con­
stitution and Laws of the United States. He requested 
the respondents to supply him with a ballot and permit 
him to vote at the Democratic Primary Election held on. 
that day and the respondents refused to permit the peti­
tioner to vote or to furnish him with a ballot and stated 
as the reason that under instructions from the Democratic 
County Chairman, pursuant to a resolution of the State 
Democratic Executive Committee adopted under the au­
thority of Chapter G7 of the Laws of 1927 of Texas, only 
white Democrats were allowed to participate in the Demo­
cratic Primary then being held. The respondents ruled 
that the petitioner was not entitled to vote in the Demo­
cratic Primary because he was a Negro (R. 3, 487). The 
resolution of the State Democratic Executive Committee 
of Texas, under the color of Avhich respondents purported 
to act, reads as follows:

“Resolved: That all white Democrats who are 
qualified and under the Constitution and lavs of 
Texas and who subscribe to the statutory pledge 
provided in Article 3110, Revised Civil Statutes of 
Texas, and none other, be allowed to participate in 
the primary elections to be held July 28, 1928, and 
August 25, 1928, and further, that the Chairman 
and secretary of the State Democratic Executive 
Committee be directed to forward to each Demo­
cratic County Chairman in Texas a copy of this 
resolution for observance.”

The statute under the authority of which the Democratic 
State Executive Committee adopted this resolution, Chap­
ter 67 of the Laws of 1927 (Article 3107, Chapter 13 of the 
Revised Civil Statutes of Texas), gave authority to the 
State Executive Committee to prescribe qualifications of 
party members and determine who shall be qualified to 
vote or participate in such political party. This statute 
was passed as an “emergency” measure because, as the



13

statute itself proclaims, “the fact that the Supreme Court 
of the United States has recently held Article 3107 invalid, 
creates an emergency and an imperative public necessity 
that the constitutional rule requiring bills to be read on 
three several days in each House be suspended * *

The decision of this Court which was referred to by the 
Texas Legislature was the case of Nixon v. Herndon, 273 
U. S. 536, which held unconstitutional a statute of the 
State of Texas which expressly prohibited Negroes from 
participating in Democratic Primary Elections held in that 
state. It is alleged in the complaint, and the history of the 
Act sustains the allegation, that Chapter 67 of the Laws 
of 1927 was an attempt to evade the decision of this Court 
in Nixon v. Herndon and to provide, by delegation to the 
party Executive Committee, the disenfranchisement of 
Negroes which this Court held could not be done by direct 
action of the Legislature (R. 6, 7, 8).

This suit was brought under Section 41 of Title 28 of 
the United States Code, subdivisions 1, 11, 12 and 14 
being applicable.

Judgment is demanded against the respondents (a) be­
cause Chapter 67 of the Laws of 1927 of Texas and the 
resolution of the Democratic State Executive Committee 
thereunder denied the plaintiff of the equal protection of 
the laws of Texas in violation of the Fourteenth Amend­
ment to the United States Constitution; (b) because the 
plaintiff’s right to vote at the Primary Election was denied 
and abridged by the resolution of the Democratic State 
Executive Committee and the action of the Legislature 
of Texas on account of his race and color in violation of 
the Fifteenth Amendment to the Constitution; (c) be­
cause the resolution and statute in question are contrary 
to Section 31 of Title 8 of the United States Code; and 
(d) because the respondents acting under a delegation of 
state power violated those sections of the Constitution and 
that Act of Congress when they denied the petitioner the 
right to vote on the ground that he is a Negro (R. 8-12).

The plaintiff’s petition was dismissed by the District 
Court (34 Fed. [2nd] 464) and the opinion of Judge Boyn­



14

ton is printed on pages 23 et seq. of the record. The 
Circuit Court of Appeals for the Fifth Circuit affirmed 
the decision of the District Court with an opinion (
Fed. [2nd] ) printed on pages 40 et seq. of the record.

Jurisdiction.

Jurisdiction of Federal Courts over this suit is provided 
by Section 41 of Title 28 of the United States Code (Judi­
cial Code, Sec. 24 as amended). Tt is there provided that 
the District Court shall have original jurisdiction over:

“ (1) * * * First. Of all suits of a civil nature, 
at common law or in equity, * * * where the 
matter in controversy exceeds, exclusive of interest 
and costs, the sum or value of §>3,000, and (a) arises 
under the Constitution or laws of the United States, 
or treaties made, or which shall be made, under 
their authority * *

Subdivision 11 provides for suits for injuries on account 
of acts done under laws of the United States “or to enforce 
the right of citizens of the United States to vote in the 
several States.” Subdivision 12 deals with suits concern­
ing civil rights and gives to the District Courts jurisdic­
tion

“Of all suits authorized by law to be brought by 
any person for the recovery of damages on account 
of any injury to his person or property, or of the 
deprivation of any right or privilege of a citizen 
of the United States, by any act done in furtherance 
of any conspiracy mentioned in Section 47 of 
Title 8.”

In subdivision 14 it is provided that the Court shall have 
jurisdiction

“Of all suits at law or in equity authorized by 
law to be brought by any person to redress the de­
privation, under color of any law, statute, ordi­
nance, regulation, custom, or usage, of any State, 
of any right, privilege, or immunity secured by the



15

Constitution of tlie United States or of any right 
secured by any law of the United States providing 
for equal rights of citizens of the United States, or 
of all persons within the jurisdiction of the United 
States.”

This suit is not only a suit to redress deprivation of 
civil rights by reason of the unconstitutional restraint upon 
the petitioner’s right of suffrage in violation of the Four­
teenth and Fifteenth Amendments, but it is also based 
specifically upon the violation of a Federal statute, to wit, 
Section 31, Title 8 of the United States Code, which pro­
vides :

“Section 31. Race, color, or previous condition 
not. to affect right to vote. All citizens of the United 
States who are otherwise qualified by law to vote 
at any election by the people in any State, Terri­
tory, district, county, city, parish, township, school 
district, municipality, or other territorial subdivi­
sion, shall be entitled and allowed to vote at all such 
elections, without distinction of race, color, or pre­
vious condition of servitude; any constitution, law, 
custom, usage, or regulation of any State or Terri­
tory, or by or under its authority, to the contrary 
notwithstanding.”

Section 43 of Title 8 of the United States Code also grants 
a right of action for violation of the right of franchise 
granted by Section 31.

It should in this connection be noted that not only candi­
dates for local office, but also for United States Senator 
and Congressmen were nominated at the primary held on 
July 28, 1928 (R. 2).

The Circuit Court of Appeals accepted jurisdiction of 
this cause and decided the motion to dismiss upon the 
merits (R. 41).

The District Court, after deciding the motion on the 
merits, evidently confused the question of jurisdiction and 
the question of absence of merits in the discussion in the 
last paragraph of the opinion. This distinction between 
jurisdiction and merits has been clearly set forth by this



16

Court in Binderup v. Pathe Exchange, 263 U. S. 291, at 
page 305, and General Investment Co. v. N. Y. Central 
R. R., 271 U. S. 228, at page 230.

In cases similar to this one this Court has assumed 
jurisdiction.

Wiley v. Sinlcler, 179 U. S. 58-65;
Swafford v. Templeton, 185 U. S. 487;
Myers v. Anderson, 238 TJ. S. 368;
Nixon v. Herndon, 273 U. S. 536.

Grounds on Which Writ of Certiorari Is Sought.

The petitioner now prays for a writ of certiorari* for 
the following reasons, which will be discussed in extenso 
in the subsequent pages.

(A) The decision of the Circuit Court of Appeals for 
the Fifth Circuit in this case is in conflict with applicable 
decisions of this Court.

(B) The decision of the Circuit Court of Appeals in 
this case is in conflict with the recent applicable decision 
of the Circuit Court of Appeals for the Fourth Circuit in 
West v. Bliley, 42 Fed. (2nd) 101.

(C) Because of the importance of the questions raised 
by this suit, which, if not reversed, will legalize a practice 
which disenfranchises the Negroes of Texas.

* See Title 28, §347, U. S. Code; Judicial Code, §240.



17

P O I N T S .

I.

The decision of the Circuit Court of Appeals in 
this case is in conflict with the applicable decisions 
of this Court.

A.—U nder the  authority of N ixon  v. H erndon and 
OTHER CASES, CHAPTER 67 OF THE LAWS OF 1927 OF TEXAS 
AND THE RESOLUTION OF THE DEMOCRATIC STATE EXECUTIVE
Committee adopted under delegation of authority from 
th e  Texas Legislature are unconstitutional and void
UNDER THE FOURTEENTH AND FIFTEENTH AMENDMENTS TO
the  Constitution of the  U nited S tates.

Nixon v. Herndon, 273 U. S. 536, is in all respects except 
one identical with the present case. There Nixon, this 
same petitioner, brought his action against the judges of 
election for refusing to permit him to vote at a primary 
election in Texas. Damages were sought, as here, for 
$5,000. The primary election then, as in this case, was 
held in El Paso for the nomination of candidates for Sena­
tor and representatives to Congress and state and other 
officers on the Democratic ticket. Then, as in this case, 
the defendant judges of election refused to permit the peti­
tioner to vote in the Democratic Party primary because 
he was a Negro. In that case their action was based upon 
the Texas statute enacted in May, 1923, designated Article 
3093-a (the former Art. 3107, Texas Rev. Civ. Stats.), 
which provided that “in no event shall a negro be eligible 
to participate in a Democratic Party primary election held 
in the State of Texas,” etc. Now the judges of election 
have refused to permit the petitioner to vote at the primary 
because of the resolution of the State Democratic Execu­
tive, quoted supra, which was adopted pursuant to Chapter 
67 of the Laws of 1927 and which restricts voting in Demo­
cratic primary elections to “white D e m o c r a t s In both 
cases it has been contended that the deprivation of the



18

petitioner of the right to vote was in violation of the Four­
teenth and Fifteenth Amendments. Then, as now, the de­
fendants moved to dismiss on the ground that the subject 
matter was political and not within the jurisdiction of the 
Court and that no violation of the amendments was shown.

The holdings of this Court in Nixon v. Herndon which 
are controlling here are that (1) the plaintiff was injured 
by a deprivation of civil rights, and (2) this deprivation 
was without constitutional justification. The Court de­
cided :

(A) Although the petition concerned political action, 
it  alleged and sought recovery for private damage and the 
suit could be maintained under the authority of Ashby v. 
White, 2 Ld. Kaym. 938, 3 id. 320; W iley v. Hinkler, supra; 
Giles v. Harris, 189 U. S. 475, 485; Judicial Code, Sections 
24 (11), (12), (14).*

(B) There is no distinction between the petitioner’s 
right to vote at a primary election and at a final election.**

(C) The Court did not pass upon the Fifteenth Amend­
ment “because it seems to us hard to imagine a more direct 
and obvious infringement of the Fourteenth.” And the 
Court then pointed out that the Fourteenth Amendment 
was passed with a special intention to protect Negroes from 
discrimination (and the same, of course, is true of the 
Fifteenth Amendment).

(D) Finally, it was held that the Texas statute of May, 
1923, was unconstitutional because in assuming to forbid 
Negroes to take part in primary elections, “the importance 
of which we have indicated,” it was discriminating against 
them by the distinction of color alone and “color cannot

* Section 41, Title 28, U. S. Code.
** In that case Mr. Justice Holmes said, page 540: “If the defendant’s 

conduct was a wrong to the plaintiff the same reasons that allow a recov­
ery for denying the plaintiff a vote in a final election allow it for denying 
a vote at the primary election that may determine the final result.”



19

be made the basis of a statutory classification affecting the 
right set up in this case.”

The injury in this case is identical with that in Nixon v. 
Herndon.

T he so le  question  b efore this Court is w h eth er  consti­
tu tional justification  ex ists in th is case. A b sen ce o f con ­
stitu tional justification  w ill be d em onstrated  if it is esta b ­
lished th a t th e action  o f th e respon d en ts a s ju d ges of 
election s w a s tak en  under s ta te  au thority  or w as in e ffec t  
action  by  th e sta te  itself. T he p resent case  w ill then  
com e w ith in  th e category  o f N ixon v. H erndon.

Analysis of the Texas Statutes and the Attempt to 
Nullify Nixon v. Herndon.

Let us first examine Chapter 67 of the Laws of 1927. It 
reads as follows (R. 5, 6) :

“A uthorizing P olitical P arties Through State 
Executive Committees to P rescribe Quali­

fications of Their Members.

(H. B. No. 57)
Chapter 67.

An Act to repeal Article 3107 of Chapter 13 of 
the Revised Civil Statutes of Texas, and substitut­
ing in its place a new article providing that every 
political party in this State through its State Execu­
tive Committee shall have the power to prescribe the 
qualifications of its own members and shall in its 
own way determine who shall be qualified to vote or 
otherwise participate in such political party, and 
declaring an emergency.

Be it enacted by the Legislature of the State of 
Texas:

Section 1. That Article 3107 of Chapter 13 of 
the Revised Civil Statutes of Texas be and the same 
is hereby repealed and a new article is hereby en­
acted so as to hereafter read as follows:



20

‘Article 3107. Every political party in this 
State through its State Executive Committee shall 
have the power to prescribe the qualifications of 
its own members and shall in its own way deter­
mine who shall be qualified to vote or otherwise 
participate in such political party; provided that 
no person shall ever be denied the right to par­
ticipate in a primary in this State because of for­
mer political views or affiliations or because of 
membership or non-membership in organizations 
other than the political party.’
Sec. 2. The fact that the Supreme Court of the 

United States has recently held Article 3107 invalid, 
creates an emergency and an imperative public 
necessity that the Constitutional Rule requiring 
bills to be read on three several days in each House 
be suspended and said rule is hereby suspended, 
and that this Act shall take effect and be in force 
from and after its passage, and it is so enacted.

Approved June 7, 1927.
Effective 90 days after adjournment.”

The statute declares an emergency to exist. What was 
the emergency in June, 1927? It was, as expressed in Sec­
tion 2, the fact that on March 7, 1927, this Court had 
declared the existing statute restricting Negro voting in 
Democratic primaries to be unconstitutional. That created 
an emergency in that Negroes might legally vote in Demo­
cratic primaries unless something were done.

The respondents claimed, and the District Court and 
Circuit Court of Appeals held in this case, that the politi­
cal parties had inherent power to determine who should 
vote at party primaries. The Texas Legislature, however, 
has not taken this same view. Having already assumed 
control over primary elections,* it proceeded by Chapter

* Primary elections are themselves compulsory under the Texas stat­
utes for all parties which cast more than 100,000 votes at the last general 
election (1925 Tex. Rev. Civ. Stats., Elections, Art. 3101). Actually, this 
provision has been applied, and now does apply only to the Democratic 
Party because it alone has been able to muster the requisite number of 
votes. The time, place and manner of holding Primary Elections, as well 
as of determining and contesting the results thereof, are comprehensively 
and minutely described by sttautory provisions {Idem., Arts. 3102-3105, 
3108, 3109-3114, 3116-3117, 3120, 3122-3127, 3146-3153).



21

G7 of the Laws of 1927 to delegate to the state executive 
committee of every political party in the state the power 
to prescribe qualifications for membership and who should 
be qualified to vote or otherwise participate in the political 
parties.

That it was the legislative intention to evade and nullify 
the decision of this Court appears upon the face of the 
enactment; and from the wording of the statute itself it 
is equally apparent that the Legislature was not surren­
dering the control of the franchise in primary elections, 
but was providing for the control in another way. The 
statute was, to quote its own terms, “to repeal Article 3107 
of Chapter 13 of the Revised Civil Statutes of Texas, and 
substituting in its place a new Article * * If the
Democratic Legislature of Texas could not constitutionally 
forbid Negroes to vote in primaries, it could nevertheless 
with a feeling of assurance entrust to the Democratic State 
Committee the power to enact such prohibition and achieve 
the same end. This Court has held that a legislative body 
cannot accomplish by indirection something which it is 
without power to do directly (cf. Hammer v. Dagenhwrt, 
247 U. S. 251, and Child Labor Tax Case, 259 U. S. 20).

Thus this Court has held that a state could not re-estab­
lish the status quo of the days before the adoption of the 
Fifteenth Amendment through the medium of “grand­
father clauses” which sought to exclude Negro voters from 
the polls.

Guinn v. The United States, 238 U. S. 347;
Myers v. Anderson, 238 U. S. 368.

State Executive Committee as an Agency of the 
Legislature.

The Legislature having made the Democratic State Exec­
utive Committee its agency, the old maxim qui facit per 
alivm facit per se is applicable. It follows that the reso­
lution of the executive committee must be read as an inte­



22

gral part of the statute itself, and when superimposed upon 
Chapter 67 of the Laws of 1927, this new section is iden­
tical with the old Article 3107, which was considered and 
condemned in Nixon v. Herndon.

It is not necessary to hold that the Democratic State 
Executive Committee was for all purposes the agent of the 
state, but in so far as the powers of the Legislature to 
control and supervise primary elections and determine the 
eligibility of the participants was delegated to it, the execu­
tive committee was pro tanto the agency of the state. 
From this point of view it is, therefore, immaterial whether 
the Legislature and the courts of Texas may or may not 
deem the expenses of the party or the costs of the primaries 
to be proper charges upon the state treasury (cf. Waples 
v. Marrast, 108 Tex. 5, 184 S. W. 181, and White v. Lub­
bock, Tex. Civ. App. 1930, 30 S. W. [2nd] 722).

It is elementary that a state cannot perform by an 
agency an act which it cannot accomplish in its own name, 
that it cannot give the force of law to a prohibited enact­
ment, from whatever source originating.

Williams v. Bruffy, 96 U. S. 176;
Ford v. Surgett, 97 U. S. 594;
King Manufacturing Co. v. Augusta, 277 U. S.

100, 107-114;
Home Tel. A Tel. Co. v. Los Angeles, 227 IJ. S.

278.

In Standard Scale Co. v. Farrell, 249 U. S. 571, at page 
577, Mr. Justice Brandeis said:

“ * * * For the protection of the Federal Con­
stitution applies, whatever the form in which the 
legislative power of the State is exerted; that is, 
whether it be by a constitution, an act of the leg­
islature, or an act of any subordinate instrumen­
tality of the State exercising delegated legislative 
authority, like an ordinance of a municipality or 
an order of a commission.”



23

The “Inherent Power” Argument.

The contention has been advanced by the respondents, 
and approved by the courts below (R. 36, 42), that politi­
cal parties have inherent 'power to prescribe the qualifica- 
tions of their members and of those who may vote at 
primary elections held for the purpose of selecting their 
candidates for the general election. This being so, it is 
urged, the Democratic State Executive Committee had in­
herent power to adopt a rule disqualifying Negroes from 
voting at Democratic primary elections and to instruct the 
judges at such elections to exclude all Negroes from par­
ticipation.

This argument has no basis in the political rationale of 
this age. The state’s right to control primaries and to 
adopt reasonable classifications has not been questioned 
even by Nixon v. Herndon. It is recognized by the Texas 
courts in

Love v. Wilcox, Tex. , 28 S. W. (2nd)
515;

Briscoe v. Boyle (Tex.), 286 S. W. 275;
Ashford v. Goodwin, 103 Tex. 491,131 S. W. 535;
Anderson v. Ashe, 62 Tex. C. V. App. 262, 130 

S. W. 1044.

There is ample authority for the proposition that politi­
cal parties in their relations to elections and primaries are 
state agencies. In “Primary Elections,” by Merriam & 
Overacker (1928 Edition), the authors state at page 140:

“The theory of the party as a voluntary associa­
tion has been completely overthrown by the contrary 
doctrine that the party is in reality a governmental 
agency subject to legal regulations and control.”

And see the able article by Meyer M. Brown in 23 Michigan 
Law Review  279.

It is clear that before the enactment of Chapter 67 of 
the Laws of 1927 (present Art. 3107 of the Rev. Civ. Stats.,



24

Texas), the state executive committee had neither inherent 
nor statutory power to disqualify Negroes from voting at 
primary elections. This conclusion is inevitable from the 
meticulous manner in which the Legislature has set forth 
the machinery by which primaries are to be governed (see 
p. , infra) and the very face of Chapter 67 of the Laws 
of 1927 which purports to give the power of definition of 
party membership to the state executive committee within 
specified limitations. If the power were already inherent 
in the parties, this grant would be idle.

This does not mean that for some purposes the executive 
committee may not have inherent power still unaffected 
by the action of the Legislature. Nor does it mean that 
if  the Legislature had not acted with respect to primaries 
the parties would not have had jurisdiction over the com­
position of the electorate at such primaries. These are 
matters that need not now be questioned or decided. 
It is sufficient that the Legislature has spoken and it there­
fore must be deemed to have assumed full control of the 
situation (Briscoe v. Boyle, Tex., 1926, 286 S. W. 275; Love 
v. Wilcox, Tex., 1930, 28 S. W. [2nd] 515). If this were 
not the case, it was unnecessary for the Legislature to have 
adopted Chapter 67 of the Laws of 1927. The emergency 
there stated to exist would have been a mere figment of 
the legislative imagination and the act itself a voice in 
vacuum. Only as a last resort can a Federal Court deem 
such to be the fact. Fruitful analogy may be found in 
the relation of Congress and the state legislatures in con­
nection with the commerce clause and state police 
powers.*

Texas Cases Defining Legislative and Party Powers.

The argument of “inherent power” has been disposed of 
by the Texas courts. Love v. Wilcox, Tex., 19301, 28 S. W. 
(2nd) 515, arose under the same statute under considera­

* See article by Thomas Reed Powell, 12 Minn. Law Rev. 321, 470; 
Lindgrcn v. U. S., 281 U. S. 38, 46.



tion in this case. There the plaintiff sought a mandamus 
to compel the Democratic State and County Executive 
Committees to place his name on a gubernatorial ballot of 
the Democratic primary and to desist from enforcing the 
resolution passed in February, 1930, by the Democratic 
State Executive Committee, which precluded anyone from 
becoming a candidate at the Democratic primaries if he 
had voted against the party in the 192S elections after 
having participated in the Democratic primary of that 
year. The Supreme Court of Texas held that the provi- 
visions of Article 3107 of the Revised Civil Statutes of 
Texas (Chap. 67 of the Laws of 1927) prohibit the party 
executive committee from excluding a candidate because 
of past disloyalty to the party. In that case the party 
claimed that it had inherent power to manage its own 
affairs and determine who could present his name for nomi­
nation at a primary. The Court considered the broad 
question of party power in connection with applicable 
legislation. The Court said in this connection:

“This case comes clearly within the class of cases* 
involving the enforcement of the sovereignty of the 
state and the protection of the citizen’s right to 
effective participation in his state’s government. 
All political power is inherent in the people of 
Texas, whose government is founded on their au­
thority and maintained for their benefit. * * * 
Section 2 of Article I (i. e., the State Constitution) 
further pledges the faith of the people of Texas to 
the preservation of a republican form of govern­
ment, and declares that ‘subject to this limitation 
only, they (the people) have at all times the in­
alienable right to alter, reform or abolish their 
government in such manner as they may think ex­
pedient.’ The primary laws of this State are based 
upon a recognition of political parties as agencies 
of the people for the exercise of the powers thus 
reserved to them by the constitution. It necessarily 
follows as a part of the right of the people to organ­
ize political parties for the constitutional purposes 
stated that the people of the state have the power, 
through their Legislature, to enact laws having for



26

their purpose the protection of the constitutional 
rights, declared in the provision just quoted. * * * ” 
(p. 521).

Briscoe v. Boyle, 286 S. W. 275 (Tex. Civ. App., 1926), 
involved the old Article 3107 prior to declaration by this 
Court in Nixon v. Herndon that that article was uncon­
stitutional. The question of the inherent power of the 
political parties to determine their membership was there 
squarely raised and decided. A county Democratic execu­
tive committee adopted a resolution excluding from pri­
mary elections all those who had voted against any Demo­
cratic gubernatorial nominee at the last election. Four­
teen such persons brought suit against the judges of elec­
tion to enjoin them from enforcing the resolution. The 
injunction was denied in the lower court, but on appeal 
the decree Avas reversed and the injunction granted. The 
Texas Court of Civil Appeals considered at length the leg­
islative situation with respect to primary elections and 
held that since the State of Texas had legislated in detail 
concerning the qualifications of voters in such elections, 
political parties themselves no longer have any power to 
prescribe qualifications not made under authority of stat­
ute. The Court said:

“By excluding negroes from participating in 
party primary elections, and by legislating upon the 
subject of the character and degree of party fealty 
required of voters participating in such elections, 
the Legislature has assumed control of that subject 
to the exclusion of party action, thus depriving the 
party of any power to alter, restrict or enlarge the 
test of the right of the voter to participate in party 
primaries” (p. 276).

The Court also said:
“But the Legislature has taken possession and 

control of the machinery of the political parties of 
the state, and, Avhile it permits the parties to oper­
ate that machinery they do so only in somewhat 
strict accordance with the rules and regulations laid 
down in minute and cumbersome detail by the leg­
islative body” (p. 276).



2 7

Briscoe v. Boyle is especially interesting from the his­
torical point of view because it indicates that whatever 
power political parties may once have had to determine 
their membership, the state had absorbed this power and 
exercised it by the Act of 11)23 and had itself determined 
the eligibility of participants in the Democratic primary 
elections. Chapter G7 of 1927 in no way surrendered this 
power. While it authorized the state executive committee 
to prescribe the qualifications of party members, this was 
a limited authority in that it prohibited the party from 
denying anyone the right to participate in a primary be­
cause of former political views or affiliations (the question 
involved in Love v. Wilcox) and also forbade the parties 
to discriminate against qualified voters because of their 
membership or non-membership in organizations other 
than a political party. In other words, the fact of inem- 
bership or non-membership in the Klu Klux Ivlan or a 
benevolent order or a church could not affect the right 
to vote. It is clear that the Legislature had no intention, 
even if it had the right, to abandon its jurisdiction over 
the primaries of the state.

It follows that the defects of the Act of 1923 are equally 
inherent in the Act of 1927 as elaborated by the resolution 
of the Democratic State Executive Committee and that the 
Act of 1927 as so amplified deprived the petitioner of the 
equal protection of the laws guaranteed to him by the 
Fourteenth Amendment and of the right to vote guaran­
teed to him by the Fifteenth Amendment. The decision 
of this Court in Nixon v. Herndon is, therefore, applicable 
and the Circuit Court of Appeals erred in failing to apply 
that decision to this case.

Mention must also be made of Ijove v. Griffith, 26G U. S. 
32. There the plaintiffs as qualified electors sought to en­
join as violative of the Constitution the enforcement of a 
rule made by the Democratic City Executive Committee of 
Houston, Texas, that Negroes should not be allowed to 
vote at a particular Democratic primary election. The bill 
was denied and the plaintiffs appealed to the Court of



28

Civil Appeals, which held that at the date of its decision, 
months after the election, the cause of action had ceased 
to exist and that the appeal would not be entertained on 
the question of costs alone. On error to this Court, Mr. 
Justice Holmes said, page 34:

“If the case stood here as it stood before the court 
of first instance it would present a grave question 
of constitutional law and we should be astute to 
avoid hindrances in the way of taking it up. But 
that is not the situation. The rule promulgated by 
the Democratic Executive Committee was for a 
single election only that had taken place long before 
the decision of the Appellate Court. No constitu­
tional rights of the plaintiffs in error were infringed 
by holding that the cause of action had ceased to 
exist. The bill was for an injunction that could 
not be granted at that time. There was no consti­
tutional obligation to extend the remedy beyond 
what was prayed.”

The “grave question of constitutional law,” which this 
Court could not consider in Love v. Gri ffith, because in that 
instance time had made the issue moot, has become the 
vital point of conflict in the present suit.

B.— Th e  respondents in  refusing to permit the  peti­
tioner TO VOTE WERE ACTING IN THEIR OFFICIAL CAPACITIES 
AS STATE OFFICERS, BECAUSE THEY WERE APPLYING STATE 
POWERS TO A PUBLIC PURPOSE. UNDER DOCTRINE1 OF HOME
Tel. & Tel. C o. v. L os A ngeles their conduct violated
THE CONSTITUTIONAL RIGHTS OF THE PETITIONER IRRESPEC­
TIVE OF THE VALIDITY OF CHAPTER 67 OF THE LAWS OF 
1927.

If Chapter 67 of the Laws of 1927 has delegated to the 
party executive committee the power to exclude Negroes 
from primary elections, the action of the party executive 
committee is then the action of the state, as we have shown, 
supra, and the statute to that extent is consequently un­
constitutional. If, however, the statute is not deemed to



2!)

liave delegated the power to exclude Negroes, it would not 
be unconstitutional; and in that event if the suit were here 
brought against the party executive committee it might 
have been a defense that the party executive committee 
had inherent power to exclude Negroes from voting at 
primaries. But just as the question here presented does 
not involve the determination that political parties are 
for all purposes agencies of the state, so it is unimportant 
whether political parties have for some purposes inherent 
power to prescribe the terms of party membership.

This action is not against the party executive committee. 
It is brought against the judges of election, who—whether 
they be deemed state officials, party officials or the repre­
sentatives of the contending candidates who contribute to 
their remuneration—are clothed with the power to act in 
the capacity of judges of election at primary elections by 
the state itself. Though their designation may come from 
the party, their powers flow from the state alone and their 
function as judges of election is to accomplish a state 
purpose.

Powers Vested in Judges of Election.

It has already been shown that the Legislature has with 
meticulous care provided for the time, place and manner 
of holding primary elections and of determining and con­
testing the results (supra, p. 20). Among the statutory 
provisions are a number dealing with judges of elections. 
Their title, position, status, method of appointment, pow­
ers and duties are all created and prescribed by law (1925 
Tex. Rev. Civ. Stats., Elections, Arts. 3102 et seq. ). They 
are thus required to take an oath faithfully to perform 
their “duty as officer of the election” (Arts. 2998, 3104). 
They are employed to keep the peace at the primary elec­
tion, to enforce the anti-loitering law, to make arrests, to 
administer oaths and conduct examinations thereunder in 
order to determine the qualifications of voters (Art. 3105).



30

Article 3105 of the Election Law reads:
“Judges of primary elections have the authority, 

and it shall be their duty, to administer oaths, to 
preserve order at the election, to appoint special 
officers to enforce the observance of order and to 
make arrests, as judges of general elections are 
authorized and required to do. Such judges and 
officers shall compel the observance of the law that 
prohibits loitering or electioneering within one hun­
dred feet of the entrance of the polling place, and 
shall arrest, or cause to be arrested, anyone engaged 
in the work of conveying voters to the polls in car­
riages or other mode of conveyance, except as per­
mitted by this title.”

The power “to administer oaths * * * as judges of 
general elections are authorized and required to do” em­
braces above all a power to administer such oaths for the 
purposes of ascertaining the qualifications of a challenged 
voter. They are thus imbued with the power to determine 
who is duly qualified as an elector as well as to keep the 
peace and “to appoint special officers to enforce the ob­
servance of order and to make arrests, as judges of general 
elections are authorized and required to do.”

And thus it appears that even if these respondents be 
not state officers in the same category and to the same 
extent as the Governor or the Attorney General of the 
state, they are, nevertheless, quasi-public officials receiving 
the definition of their duties and the badge of their author­
ity from the statutes of the state; and the Legislature has 
by its own edict given to judges of primary elections the 
powers and duties of judges of general elections (Art. 3105, 
supra).

It requires no further extended argument to demon­
strate that the conduct of primary elections is, when au­
thorized by statute, a state function pointed to achieving 
a fair expression of popular, sovereign will (Love v. W il­
cox, supra), and that the judges of election acting in their 
capacities as judges of primary elections are fulfilling a 
state purpose (see discussion supra, pp. 25-27).



31

Acts of Respondents Attributable to State.

If, therefore, these judges of election have abused their 
state powers and have used them “as the instrument for 
doing wrongs,” their actions are attributable to the state 
itself. This is clear from a reading of

Horne Tel. & Tel. Co. v. Los Angeles, 227 U. S.
278;

Standard Scale Co. v. Farrell, supra;
King Manufacturing Co. v. Augusta, supra.

Home Tel. & Tel. Co. v. Los Angeles involved the validity 
of an ordinance of the City of Los Angeles establishing 
telephone rates which it was claimed were confiscatory and 
in violation of the due process clause of the Fourteenth 
Amendment. The question there was whether in the ab­
sence of the final decision by a State Court holding the rates 
in question to be proper, there could be said to have been 
such state action by reason of the ordinance alone as 
would bring the Fourteenth Amendment into play and 
give the Federal Courts jurisdiction. Mr. Chief Justice 
White, writing for this Court, said at page 28G:

“ * * * the provisions of the Amendment as 
conclusively fixed by previous decisions are generic 
in their terms, are addressed, of course, to the 
States, but also to every person whether natural or 
juridical who is the repository of state power. By 
this construction the reach of the Amendment is 
shown to be coextensive with any exercise by a State 
of power, in whatever form exerted.” (Italics 
ours.)

The emphasis in the Home Tel. & Tel. case is placed, 
not upon the official title of the actor, but upon the vesting 
in him of state power, viz., power granted by the state 
devoted to a state purpose. This is made clear from fur­
ther quotations from the opinion of Mr. Chief Justice



32

White at pages 287 et seq., where he says, speaking of the 
Fourteenth Amendment:

“It provides, therefore, for a case where one who 
is in possession of state power uses that power to 
the doing of the wrongs which the Amendment for­
bids even although the consummation of the wrong- 
may not be within the powers possessed if the com­
mission of the wrong itself is rendered possible or 
is efficiently aided by the state authority lodged in 
the wrongdoer. That is to say, the theory of the 
Amendment is that where an officer or other rep­
resentative of a State in the exercise of the author­
ity with which he is clothed misuses the power pos­
sessed to do a wrong forbidden by the Amendment, 
inquiry concerning whether the State has author­
ized the wrong is irrelevant and the Federal judi­
cial power is competent to afford redress for the 
wrong by dealing with the officer and the result of 
his exertion of power.”

It was then pointed out that the amendment, in looking 
to the enforcement of rights which it guaranteed and to 
the prevention of wrongs which it prohibited, did not pro­
ceed only upon the assumption that states acting in their 
governmental capacities “in a complete sense” may violate 
the provisions of the amendment, but “which Avas more nor­
mally to be contemplated, that state powers might be 
abused by those who possessed them and as a result might 
be used as the instrument for doing wrongs” and that the 
amendment provided against this contingency. And again, 
at page 288, he said:

“Under these circumstances it may not be doubted 
that where a state officer under an assertion of 
power from the State is doing an act Avhich could 
only be done upon the predicate that there was such 
poAver, the inquiry as to the repugnancy of the act 
to the Fourteenth Amendment cannot be avoided 
by insisting that there is a want of poAArer.
To repeat, for the purpose of enforcing the rights 
guaranteed by the Amendment when it is alleged 
that a state officer in virtue of state poAver is 
doing an act Avhich if  permitted to be done prirna



facie would violate the Amendment, the subject 
must be tested by assuming that the officer possessed 
power if the act be one which there would not be 
opportunity to perform but for the possession of 
some state authority.” (Italics ours.)

Applying that test to this case, it is clear that the re­
spondents would not have had the opportunity to refuse 
to permit the petitioner to vote in the Democratic Party 
primary election if they had not become possessed of the 
power to act as judges of election through act of the Leg­
islature of the state.

It is suggested in the opinion of the District Court (R. 
34), and again in the opinion of the Circuit Court of Ap­
peals (R. 42), that in view of the fact that the respondents 
were paid for the services which they rendered as judges of 
election out of a fund derived from contributions by the 
participating candidates, they could not be acting as offi­
cers of the State of Texas. The source of remuneration is 
never determinative as to the status or official capacity of 
a person. There is no end of cases sustaining this proposi­
tion.* See:

Turney v. Ohio, 273 U. S. 510;
Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120;
Hendricks v. The State, 20 Tex. Civ. App. 178, 49 

S. W. 705;
Willis v. Owen, 43 Tex. 41;
Lincoln v. Hapgood, 11 Mass. 350.

If, therefore, these judges of election have abused their 
powers derived from the state and have used them “as the 
instrument for doing wrong,” their actions are state ac­
tions. The classification by reason of color is forbidden 
to the state by the Fourteenth and Fifteenth Amendments 
and this prohibition is controlling not only in so far as 
the legislative action is concerned, but also applies to any­
one acting under authority lodged in him by the state.

* Cases are collected in exhaustive note in 53 A. L. R. 595.



34

We then have the situation of a deprivation of the plain­
tiff’s right not to be discriminated against at the polls by 
reason of his color; we have a lack of justification; and 
we have the fact that this unjustified deprivation was made 
possible only by the patent of authority with which the 
state has invested these respondents.

II.

The decision of the Circuit Court of Appeals in this 
case is in conflict with the decision of the Circuit 
Court of Appeals for the Fourth Circuit in Bliley v. 
West.

Bliley v. West, 42 Fed. (2nd) 101, arose out of a similar 
effort by the State of Virginia to disenfranchise Negroes 
in the primary elections. There the statute described vot­
ers as “all persons qualified to vote at the election for 
which the primary is held, and not disqualified by reason 
of other requirements in the law of the party to which 
he belongs.” The Democratic State Convention of 1924 in 
Virginia adopted a resolution declaring that only white 
persons should participate in the Democratic primary. The 
action was brought for damages against the judges of elec­
tion who set up this resolution as a justification. Defend­
ants demurred and the District Court overruled the de­
murrer with an opinion written by Judge Groner, 33 Fed. 
(2nd) 177. The case went to trial; upon appeal from the 
final judgment in favor of the plaintiff, the Circuit Court 
of Appeals for the Fourth Circuit, 42 Fed. (2nd) 101, 
affirmed the judgment, adopting the opinion of Judge 
Groner as its own.

After citing the case of Commonwealth v. Willcox, 111 
Va. 849, at p. 859, in which the Court held that a primary 
once adopted by a political party becomes and constitutes a 
necessary part of the election machinery and “fulfils an 
essential function in the plea to promote honesty in the 
conduct of elections'—elections which shall faithfully re­



35

fleet and register tlie rm bo light will of the electors,” Judge 
Groner said as follows, at page 180:

“The statute of Virginia, unlike that of Texas, 
does not in terms exclude the negro, but gives to 
the party participating the right to do so.* The 
result is the same. The Legislature, pursuant to con­
stitutional authority, having undertaken to regulate 
primary elections and to authorize them to be held 
at the public expense and to provide the same rules 
and regulations applicable to an election, may not 
indirectly, any more than it may directly, exclude a 
duly qualified voter who declares himself to be an 
adherent to the party participating in the primary 
from the exercise of his right of suffrage. The Four­
teenth Amendment compels the adoption of what is 
called impartial suffrage. Its purpose was to estab­
lish all over the United States one people, and that 
each of these may understand the constitutional 
fact that his privileges and immunities cannot be 
abridged by state authority, and that these rights 
are not confined to any class or race but compre­
hend all within its scope. The General Assembly 
of Virginia having provided the primary as a method 
(though optional) for the nomination of candidates, 
and the Supreme Court of Virginia having declared 
it when adopted an inseparable part of the election 
machinery, it would seem to me necessarily to fol­
low that the legislature cannot by delegation or 
otherwise give vitality to a claimed right which it is 
itself prohibited by the Constitution from enacting 
into law.”

Compare this noble language with the narrow construc­
tion of the Constitution by the Circuit Court of Appeals 
in this case. Bryan, C. J., said (R. 42) :

“Each political party is represented by its own 
election officials who have nothing to do with con­
ducting the primary of any other party. In these 
particulars the primary election law of Texas dif­
fers radically from that of Virginia where the State 
conducts and pays the expense of holding the pri­

* This refers to the old Section 3107 considered in Nixon v. Herndon, 
supra.



36

mary for all political parties just as it does in the 
general election. West v. Bliley, 33 F. (2) 177, 
affirmed by the Circuit Court of Appeals for the 
Fourth Circuit in 42 F. (2) 101, cannot therefore 
in our opinion be relied on as authority in this case.”

We have already discussed supra, page 33, the irrele­
vance of the argument that there is a categorical difference 
between cases in which the state pays the primary expenses 
and one in which the candidates do. This factor was the 
sole difference between this case and West v. Bliley. As 
the situation now stands, Negroes may not be deprived of 
the vote at primaries conducted in the Fourth Circuit, but 
they can be excluded in the Fifth Circuit. This discrep­
ancy should be removed by this Court.

III.

The action of the respondents was in violation of 
Section 31 of Title 8 of the United States Code.

Section 31 of Title 8 of the United States Code has been 
discussed supra, page 15, under the question of jurisdic­
tion. The section provides that all citizens otherwise qual­
ified to vote at any election by the people in any state shall 
be entitled and allowed to vote at all such elections with­
out distinction on the ground of color, any local law, cus­
tom, usage or regulation to the contrary notwithstanding.

The primary election in which the petitioner was denied 
participation was inter alia for the nomination of candi­
dates for representatives to Congress and for United States 
Senator. There were six candidates for the nomination 
for Senator and two candidates for the nomination of rep­
resentative to Congress (K. 2). The petitioner was denied 
the right to vote because of his color (R. 4). It follows 
that the action of the respondents violated this Federal 
statute, to the petitioner’s injury. Even if the opinion of 
the District Court and the Circuit Court of Appeals could 
be sustained with respect to state officers on the ground



3 7

of the inherent power of political parties to make discrimi­
natory regulations with respect to participants in the 
primary elections, this argument could have no bearing 
upon the case in the face of this express act of Congress.

Wiley v. Sinkier, supra;
Swafford v. Templeton, supra.

In this connection it may be pointed out that Newberry 
v. United States, 256 U. S. 232, is irrelevant. That case 
involved the power of Congress to limit the amount of 
money which a candidate for United States Senator might 
contribute or procure for his nomination or election. De­
cided by a divided Court, the case turned upon the inter­
pretation of the authority granted to Congress over the 
election of its members by Article I, Section 4 of the Con­
stitution. It did not deal with the question of “the right 
to vote” and the power of Congress to enforce that right 
as granted by the Fourteenth and Fifteentli Amendments.

IV .

This Court should assume jurisdiction of this case 
by writ of certiorari because of the importance of 
the question raised.

The courts of Texas have taken judicial notice of the 
fact that for all practical purposes, and certainly in so far 
as state elections are concerned, there is only one political 
party, and that the real political battles of the state are 
not those held at the general election, but those waged 
for nomination at the Democratic primaries. So, in the 
case of State ex rel. Moore v. Meharg, 287 S. W. 670, 
decided by the Court of Civil Appeals of Texas in October, 
1926, the Court said:

“Indeed, it is a matter of common knowledge in 
this State that a Democratic primary election held 
in accordance with our statutes is virtually decisive 
of the question as to who shall be elected at the



38

general election. In other words, barring certain 
exceptions, a primary election is equivalent to a 
general election.

In an article by Meyer M. Brown, 23 Mich. L. Rev. 27!), 
the author says:

“In Texas, a victory in a primary, on the Demo­
cratic side, means practically certain election.'’

And history confirms these dicta.
If Negroes in the State of Texas may not vote at Demo­

cratic primaries, they are then in a practical manner de­
prived of their franchise. It is idle to urge that they 
can participate in other party primaries, for the election of 
Republican Presidential Electors in 1928 stands out as 
unique in the political history of the State of Texas. More­
over, under Chapter G7 of the Laws of 1927, the Republican 
Party can similarly bar Negroes from its primaries and 
caucuses. The law applies to all parties.

The real question, then, is this: Shall the constitutional 
right to partake of the basic institution under a republican 
form of government be denied to a large part of the popu­
lation by reason of color alone?

This Court cannot accept Chapter 67 of the LaAVS of 1927 
of Texas at its face value, but must go further and exam­
ine what has been accomplished behind its bland exterior. 
In the Avords of Mr. Justice MattheAVS in Yick Wo v. Hop­
kins, 118 U. S. 356, 373:

“Though the law itself be fair on its face and 
impartial in  appearance, yet, if  it is applied and 
administered by public authority Avith an evil eye 
and an unequal hand, so as practically to make 
unjust and illegal discriminations betAveen persons 
in sim ilar circumstances, material to their rights, 
the denial of equal justice is still Avithin the pro­
hibition of the Constitution.”

If the decision of the Circuit Court of Appeals prevails, 
then the Fourteenth Amendment as vitalized by Nixon v.



Herndon and West v. Bliley, and the Fifteenth Amend­
ment as interpreted in Guinn v. United States, 238 U. S. 
347, will have been effectively nullified.

The “grave question of constitutional law” referred to 
by Mr. Justice Holmes in Love v. Griffith, supra, which 
arose under this very statute, is now for the first time 
presented to this Court. Your petitioner is confident that 
this Court again, in the language of Mr. Justice Holmes 
in that case, will “be astute to avoid hindrances in the way 
of taking it up.”

Respectfully submitted,

ARTHUR B. SPINGARN, 
JAMES MARSHALL, 
NATHAN R. MARGOLD, 
FRED C. KNOLLENBERG,
E. F. CAMERON,

Counsel for Petitioner.

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