Nixon v. Condon; Lane v. Wilson; U.S. v. Classic Records and Briefs

    N .A .A .a P .

RECORDS

BRIEFS





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No. 5758.
0

IN THE

UNITED STATES CIRCUIT COURT 
OF APPEALS

FIFTH  CIRCUIT.

L. A. NIXON, APPELLANT,

VS.

JAMES CONDON AND C. H. KOLLE, APPELLEES.

APPELLANT’S BRIEF.

F red C. K nollenberg,
E. F.' Cameron,
El Paso, Texas,

A rthur B. Spingarn,
New York,
Attorneys for Appellant.





INDEX

Statement of the Nature and Result of the Suit . . 1
Propositions of Law Upon Which Appellant Relies

for Reversal of the Case ..................................21-23
Point I, A, B, C, 1, 2, Stated .....................................  21
Point II A, B, Stated .................................................  22
Point III, A. B. C. Stated ..................................... 22-23
Point IY, A, B, C, Stated .........................................  23
Point I, Statement, Authorities, Remarks ...........24-41
Point II, Authorities and Remarks .......................41-61
Point II, Authorities and Remarks .........   61-70
Point IV, Authorities and Remarks ...................70-72
Prayer ................................   72

A uthorities Cited.

Anderson vs. Meyers, 183 U. S. 223 ...................... 42
Ah Kow vs. Nunan, 5 Sawyer 552 .......................... 60
Art. 1, Sec. 8, Suh. 3, U. S. Constitution.................  48
Carter vs. Texas, 177 U. S. 442 .............................. 59
Chandler vs. Neff, 298 Fed. 515 .............................. 45
Child Labor Tax Cases, 259 U. S. 20 ..................25,33
Cornell Law Review, Vol. XY. No. 2 page ..........25,30
Ex parte Siebold, 100 U. S. 371 .............................. 42
Ex parte Yarborough, 110 U. S. 551..............42, 52, 54
Fourteenth and Fifteenth Amendments ..............25,42
Gibson vs. Mississippi, 161 U. S. 565 .................. 59
Guinn vs. United States, 238 U. S. 347 ..................42,53
Home Tele. & Tele. Co. vs. Los Angeles, 227 U.

S. 278 .................................................................... 25,37
Hammer vs. Dogenhart, 247 U. S. 251 ..............25,34
Kay vs. Schneider, 218 S. W. 470............................. 64, 65
Lewis Publishing Co. vs. Morgan, 229 U. S. 301, 

302 ......................................................... 48



II Index
Love vs. Griffith, 266 TJ. 8. 32 ..........................42, 44,
Love vs. Wilcox, 28 S. W. (2) 515 ..............25,26,62,
Merriam on Primary Elections, page 116 ..........
Meyers vs. Anderson, 238 IT. 8. 367 ......................
Newberry vs. United States, 256 S. W. 232..........
Nixon vs. Herndon, 273 U. S. 536..............25, 62, 63,
People ex rel. Farrington vs. Mesching, 187 N. Y.

18 ..............................................................................
Re Ah Chong, 2 Fed. 733 ......................................
Re Tiburcio Parrott, 1 Fed. 481 ..........................
Rogers vs. Alabama, 192 U. 8. 226 ..........................
Sec. 2955, R. S. Tex.....................................................
Royster Guan Co. vs. Virginia, 253 U. S. 412 ..
Sec. 31, Title 8, U. S. Code ..................................... 25,
Standard Scales Co. vs. Farrell, 249 U. S. 571 . .25, 
Strandie vs. West Virginia, 100 U. S. 303 . . . . . . 4 2 ,
Statutes of Texas, 1925 Revised, Secs. 3100 to

3153 ..........................................................................
State ex rel. Moore vs. Meharg, 287 S. W. 670 .42, 44,
Title 8, Sec. 31, United States Code ......................
Truax vs. Reich, 239 U. S. 33 ..................................
United States vs. Gruikshank, 92 U. S. 542 ..........
United States vs. Reese, 92 U. S. 214......................42,
West vs. Barley, 33 Fed. 177......................25, 30, 62,
Waples vs. Marraset, 108 Tex. 5, 184 S. W. 180 ..
Yick Wo vs. Hopkins, 118 U. S. 356 ......................25,
Williams vs. Bruffey, 96 U. S. 176 ..................25,

62
70
44
42
62
70

60
60
60
59
62
60
62
36
55

42
62
42
60
42
51
70
64
40
34



No. 5758.

IN THE

UNITED STATES CIRCUIT COURT 
OF APPEALS

FIFTH  CIRCUIT.

L. A. NIXON, APPELLANT,
VS.

JAMES CONDON AND C. H. KOLLE, APPELLEES.

STATEMENT OF THE NATURE AND RESULT 
OF THE SUIT.

On March 15th, 1929 (Tr. 10), appellant, L. A.
Nixon filed in United States District Court of Texas, at 
El Paso, the following petition, which omitting caption is 
as follows (Tr. 10):

To the Honorable Charles N. Boynton, Judge of Said 
Court:

Comes now the plaintiff, L. A. Nixon, and for cause 
of action against the defendants, alleges:

1. That plaintiff is, and at all times mentioned in 
this complaint was, a citizen of the United States and of



2
the State of Texas and a resident of the City and 
County of El Paso, in the State of Texas; and sues 
herein on an action which arises under the Constitution 
and Laws of the United States, and is brought to re­
dress and enforce his right as a citizen of the United 
States to vote in the State of Texas, and to redress the 
deprivation under the color of a law or statute of 
the State of Texas of rights and privileges secured to 
him by the Constitution, Statutes and Laws of the 
United States; to redress an injury which he sustained 
by reason of the acts of defendants in their official 
capacities discriminating against him by reason of his 
race and color, in violation of the Constitution, Statutes 
and Laws of the United States.

2. That on the 28th day of July, A. D. 1928, there 
was held in the State of Texas, and in the County of 
El Paso in said State, a primary election for the 
nomination of candidates for offices upon the Demo­
cratic ticket; that prior to said date the defendants 
James Condon and C. H. Kolle were duly appointed as 
judge and associate judge of election in and for Precinct 
No. 9, El Paso County, Texas, and qualified and acted 
as such at the Democratic primary election duly held 
in and for such precinct on July 28, 1928. That the 
aforesaid primary election was held on said day for 
the purpose of selecting candidates for all precinct, 
county, district and state offices of the State of Texas, 
and for representatives in the Congress of the United 
States, and for United States Senator, and that there



3
were six candidates for United States Senator and two 
candidates for representative in Congress, one of whom 
was to be nominated or selected as the nominee of the 
Democratic Party at said primary election.

3. That plain tiff is a Negro as defined by the 
Statutes of the State of Texas and belongs to the 
colored, or Negro race, and upon said date, to-wit, 
July 28, 1928, was, and for more than a year prior 
thereto had been, a resident of said Precinct No. 9 
in the City and County of El Paso, Texas; that he is 
a natural born citizen of the United States of America 
and of the State of Texas; that he was born in the 
State of Texas of parents who were citizens of the 
United States; that he is forty-five years of age, and 
subject to none of the disqualifications or disabilities 
provided by the Constitution of the State of Texas for 
an elector; that he has resided in the County of El Paso, 
State of Texas, for eighteen years last past, and that 
he duly paid his poll tax for the year 1927, in El Paso 
County, before the 31st day of January, 1928, and that 
he was duly registered as a qualified voter in said 
Precinct No. 9 in said county, and his name was duly 
certified by the tax collector of said county as a 
qualified voter and elector in and for said Precinct No. 
9 five days prior to said primary election and was on 
said day and date a duly qualified voter and elector 
of Precinct No. 9, El Paso County, Texas.

4. That plaintiff is and on the 28th day of July, 
1928, was a bona fide member of the Democratic Party



4
of the State of Texas, and in every other respect is and 
was entitled to participate in all elections held within 
the State of Texas, whether for the nomination of 
candidates for office or otherwise, and that he offered 
to take the pledge to support the nominees of the 
Democratic primary election held on said day as afore­
said and to comply in every respect with the valid re­
quirements of the Laws of the State of Texas relating 
thereto, save as they violated the rights and privileges 
conferred upon and guaranteed to him by the Constitu­
tion and Laws of the United States as aforesaid.

5. That on said 28th day of July, 1928, plaintiff 
presented himself at the polling place in said Precinct 
No. 9 and tendered his poll tax receipt for the year 
1928, within the hours prescribed by law for the hold­
ing of said election, and requested of the defendants 
Condon and Kolle that he he supplied with a ballot and 
permitted to vote in said election, and that said de­
fendants thereupon wrongfully and unlawfully refused 
to permit plaintiff to vote or to furnish him with a 
ballot; and stated as reason therefor that under the 
instructions given them by one H. 0. Cregor, the 
Chairman of the County Democratic Executive Com­
mittee of El Paso County, Texas, pursuant to the 
resolution of the State Democratic Executive Com­
mittee of Texas, hereinafter set forth, adopted under 
the authority of Chapter 67 of the Laws of 1927, enacted 
by the Legislature of the State of Texas, hereinafter 
set forth, only white Democrats were allowed to par-



5
ticipate in the Democratic primary election then in 
process.

6. That plaintiff is informed and believes and so 
alleges that the defendants Condon and Kolle refused 
the plaintiff his right to vote at said election by reason 
of the following resolution passed by the State Demo­
cratic Executive Committee of Texas, prior to July 28, 
1928, to-wit:

“ 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 Democratic County Chairman in 
Texas a copy of this resolution for observance.”

7. That the aforesaid resolution was adopted by 
the State Democratic Executive Committee of Texas 
under authority of the Act of the Legislature of the 
State of Texas, approved June 7, 1927, at First Called 
Session of the Fortieth Legislature, which is designated 
as Article 3107, and being Chapter 67 of Laws of 1927, 
and being in words and figures as follows:

“ Authorizing Political Parties Through State 
Executive Committees to Prescribe Qualifi­

cations 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 sub­



6
stituting in its place a new article providing that 
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 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 
enacted so as to hereafter read as follows:

‘ 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 de­
termine who shall be qualified to vote or other­
wise participate in such political party; provided 
that no person shall ever be denied the right to 
participate 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.’

Section 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 re­
quiring 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.”

8. That prior to enactment by the Legislature of 
the State of Texas, of Chapter 67 of the Laws of 1927,



7
the Legislature of Texas, in the year 1923, passed 
Article 3093a of the Revised Civil Statutes of the State, 
which read as follows:

“ Article 3093a. All qualified voters under 
the Laws and Constitution of the State of Texas 
who are bona fine (fide) members of the Demo­
cratic Party shall be eligible to participate in any 
Democratic Party primary election, provided such 
voter complies with all laws and rules governing 
party primary elections; however, in no event 
shall a Negro be eligible to participate in a Demo­
cratic Party primary election held in the State of 
Texas, and should a Negro vote in a Demo­
cratic primary election, such ballot shall be void 
and election officials are herein directed to throw 
out such ballot and not count the same.”

That at the general primary election held in the 
County of El Paso, Texas, on July 26, 1924, plaintiff, 
who was then a bona fide Democrat with all the quali­
fications of a voter, applied to judge and associate 
judge of elections in Precinct No. 9 of El Paso County, 
Texas, to supply him with a ballot and to permit him to 
vote, which they declined to do, solely on the ground 
that he was a Negro, on the authority of the afore­
said Article 3093a; that thereupon the plaintiff brought 
an action against the aforesaid judge and associate 
judge of elections to recover the damages sustained by 
him by reason of their wrongful refusal to permit him 
to vote, and thereafter such proceedings were had in 
said action that on March 7, 1927, the cause reported 
under the name and title of Nixon v. Herndon in 273 
United States Reports at page 536, the said Article



8
3093a was declared unconstitutional and void by the 
Supreme Court of the United States, in that it denied 
to the plaintiff the equal protection of the laws; that 
the decision of the Supreme Court of the United States 
is the same decision which is referred to in Section 
2 of Chapter 67 of the Laws of 1927, of the State of 
Texas, and that said statute, which was approved on 
June 7, 1927, and pursuant to which the resolution of 
the State Democratic Executive Committee hereinbe­
fore set forth was adopted, constituted an evasion of 
the determination of the Supreme Court of the United 
States and of the provisions of the Fourteenth and 
Fifteenth Amendments to the Constitution of the 
United States, and was enacted and adopted for the 
purpose of denying to the plaintiff and all other Ne­
groes of the State of Texas who belong to the Demo­
cratic Party the right to vote in Democratic Party 
primaries held in said State.

9. That at the time of the passage of Chapter 
67 of the Laws of 1927 aforesaid the Dxmocratic 
(Democratic) Party was the only one of the great 
political parties in the State of Texas which held pri­
mary elections in that State, and, although couched in 
general terms, the aforesaid statute, when it referred 
to a State Executive Committee of Texas, and no 
other, the right to determine who should be qualified 
to vote or otherwise participate in Democratic pri­
mary elections held in said State, and was enacted by 
its Legislature for the purpose of preventing plain­
tiff and other Negroes of the State who were mem­



9
bers of the Democratic Party from participating in 
Democratic primary elections.

10. That said Act of Legislature and said reso­
lution of the State Democratic Executive Committee, 
based thereon, are inoperative, null and void, in so far 
as they allowed only white Democrats who were quali­
fied voters to participate in the Democratic Party 
primary elections held in the State of Texas on July 
28, 1928, and in effect prohibited this plaintiff be­
cause he is a Negro from voting in said primary elec­
tion; that the aforesaid resolution and the aforesaid 
Act of the Legislature pursuant to which said reso­
lution was adopted and enforced, are violative of and 
contrary to the Constitution of the United States:

(a) Of the Fourteenth Amendment to said Con­
stitution, which provides: “ No state shall make or en­
force any law which shall abridge the privileges or 
immunities of citizens of the United States nor shall 
any state deprive any person of life, liberty, or prop­
erty, without due process of law; nor deny to«,any per­
son within its jurisdiction the equal protection of the 
laws,”  in that they denied to the plaintiff the equal 
protection of the Laws of Texas.

(b) Of the Fifteenth Amendment to the said Con­
stitution, which provides: “ That the rights of citizens 
of the United States to vote shall not be denied or 
abridged by the United or by any state on account of 
race, color or previous conditions of servitude,”  in 
that the plaintiff’s right to vote at the aforesaid pri­



10
mary election was denied and abridged by the afore­
said resolution and by the aforesaid Act of the Legis­
lature of Texas, on account of his race and color.

(c) And are also contrary to the statutes enacted 
by the Congress of the United States, and especially to 
Section 31 of Title 8 of the United States Code (for­
merly Section 2004, of the United States Revised Stat­
utes), which provides: “ All citizens of the United
States who are otherwise qualified by law to vote at 
any election by the people in any state, territory, dis­
trict, county, city, parish, township, school district, 
municipality, or other territorial subdivision, shall be 
entitled and allowed to vote at such election, without 
distinction of race, color or previous condition of 
servitude; any constitution, law, custom, usage, or regu­
lation of any state or territory, or by or under its au­
thority to the contrary notwithstanding.”

11. That there are many thousand Negro Demo­
cratic voters in the State of Texas situated as is the 
plaintiff in this case; that the State of Texas is a state 
which is normally so overwhelmingly Democratic that a 
nomination on the Democratic ticket is equivalent to an 
election to the office for which such Democratic candi­
date is nominated, and that there is practically no con­
test for the selection of public officers within the State 
save that which takes place in Democratic primaries 
between candidates for nomination by the Democratic 
Party.

12. That the aforesaid acts on the part of the de­
fendants and each of them in denying plaintiff the



11
right to vote at the Democratic primary election held 
on July 28, 1928, were wrongful, unlawful, and without 
constitutional warrant, and deprived him of a valuable 
political right to his damage in the sum of five thou­
sand dollars ($5,000.00).

Wherefore, plaintiff prays that summons he is­
sued, directed to each and all of the defendants at their 
respective residences compelling them to answer this 
petition, and upon hearing that plaintiff have judg­
ment against the defendants and each of them jointly 
and severally for the sum of five thousand dollars, 
together with costs of this suit, and for such other fur­
ther relief as may be appropriate and just in the 
premises.

(Signed) K nollenberg & Cameron and 
Louis Marshall,

Attorneys for Plamtiff.

State of Texas, County of El Paso.

L. A. Nixon, being duly sworn, upon oath deposes 
and says that he is the plaintiff in the above styled and 
numbered cause, and that he has read the above and 
foregoing petition and knows the contents thereof, 
and that the facts therein stated are true.

Sworn and subscribed to before me, this the 
day of ..................... , A. D. 1929.

Notary Public in and for El 
Paso County, Texas.

Filed March 15, 1929.



12
To this petition the defendants filed the follow­

ing motion to dismiss (Tr. 11-13):

Come now the defendants in the above styled and 
numbered cause and leave of the Court having been 
obtained to file this amended motion, move the Court 
to dismiss plaintiff’s first original petition heretofore 
filed in this cause, and for grounds of dismissal set 
forth the following grounds, to-wit:

I .

That the subject matter of this suit is political in 
its nature, and that this Court is without jurisdiction 
to determine the issues involved, or to award the relief 
prayed for.

II.

That the plaintiff is not a proper party to main­
tain this suit.

HI.

k That the matters and allegations in said petition 
are not sufficient to constitute a cause of action against 
these defendants or either of them.

IV.
That the Fourteenth and Fifteenth Amendments 

to the Constitution of the United States enacted by the 
Congress of the United States pursuant thereto do not 
appear to have been violated from the allegations in 
said petition.



13
Y .

That the primary election held on the 28th day of 
July, A. D. 1928, in the State of Texas and County 
of El Paso was not an election within the meaning of 
the Constitution of the United States, or any laws 
pursuant thereto, or the Fourteenth and Fifteenth 
Amendments to the Constitution of the United States, 
but that said petition shows that such primary election 
constituted merely a nomination for an election, and 
that no deprivation of any right to vote at an election 
is alleged in said petition.

VI.

That said petition states no cause of action against 
defendants for damages for refusing a vote for the 
reason that the Acts of the Fortieth Legislature of 
the State of Texas, First Called Session, 1927, page 
193, Chapter 67, paragraph 1, provides that the State 
Executive Committee of each political party shall have 
the right to prescribe the qualifications of its mem­
bers, and that said State Executive Committee in pre­
scribing such qualifications has excluded the plaintiff 
in this case.

VII.

That the provisions of the above mentioned Act 
of Texas Legislature, all as fully set forth in plain­
tiff ’s petition, are in all respects valid and are not 
in conflict with the Constitution of the United States 
or any Amendments thereto, or in conflict with any



14
of the Statutes of the United States enacted in pur­
suance of such Constitution or Amendment.

VIII.

That the Constitution of the State of Texas and 
the Laws of the State of Texas do not, from the 
allegations in this petition, appear to have been vio­
lated.

IX.

That irrespective of any statutory authority the 
State Executive Committee of a political party has 
authority to determine who shall comprise its mem­
bership, and in this instance the State Executive Com­
mittee of the Democratic party of the State of Texas 
has excluded the plaintiff from membership in such 
political party, and that this exclusion did not violate 
any portion of the Constitution of the United States, 
or of the Statutes amended by the Congress of the 
United States.

X.

Defendants further deny that portion of plain­
tiff ’s petition which sets out that plaintiff was a Demo­
crat, and hereby allege that plaintiff was not a Demo­
crat at the time plaintiff’s alleged cause of action 
arose.

(Signed) B en R. H owell,
Attorney for Defendants•

Piled May 18, 1929.



15
On July 31, 1929, the Court sustained defendant’s 

motion to dismiss (Tr. 14) as follows:

On this, the 31st day of July, A. D. 1929, after 
due hearing before the Court, it is ordered, adjudged 
and decreed by the Court that defendants’ motion to 
dismiss, heretofore filed in this cause, be and the same 
is hereby sustained, and that this case be and the 
same is hereby dismissed at plaintiff’s costs, to which 
order plaintiff, in open court, excepted and gave notice 
of appeal.

(Signed) Charles A. B oynton,
United States District Judge.

0. K. to form.
K nollenberg & Cameron.

0. K.
B en R. H owell.

Filed July 31, 1929.

On the same day, July 31, 1929 (Tr. 14-15), plain­
tiff gave notice of appeal, filed his petition for appeal 
(Tr. 15) and on August 30, 1929 (Tr. 16) an order 
granting the appeal was made, and the bond fixed, 
and on October 22, 1929, the appeal bond was filed 
and approved (Tr. 20-22).

On October 22,1929, a praecipe was filed (Tr. 22-23) 
and on November 6, 1929, the clerk’s certificate was 
made to the transcript (Tr. 39). On January 15, 1930, 
the transcript was filed in this Court.

The opinion of the Court is found in the transcript 
(Tr. 23-38), and it is also reported in 34 Fed. (2) 
464.



16
The appellant filed in the United States District 

Court the following assignments of error (Tr. 16-20):

The United States District Court for the Western 
District of Texas erred in sustaining defendant’s 
motion to dismiss and in dismissing said cause by its 
order and judgment of July 31, 1929, for the following
reasons:

1. This case involves the construction and ap­
plication of the Constitution of the United States and 
especially of the Fourteenth and Fifteenth Amend­
ments thereto.

2. This is a case in which a law of the State- of 
Texas and the administration and application of said 
law is -claimed to be in contravention of the Constitu­
tion of the United States.

3. This is a suit for damages to redress the dep­
rivation under color of law of a right and privilege 
secured by the Laws of the United States, providing 
for equal rights of its citizens and of all persons 
within its jurisdiction.

4. This is a suit for damages for being deprived 
of the right to vote, solely on account of race and 
color and is based upon rights guaranteed by the Con­
stitution of the United States.

5. The plaintiff was denied the right to vote in 
the Democratic primary election on July 28, 1929, at 
El Paso, Texas, where there was a candidate for 
the office of Eepresentative in the Lower House of



17
the United States Congress and for the office of United 
States Senator as well as the various state officers 
and this plaintiff was denied a right to vote solely 
upon the fact that he was a Negro—he possessing all 
qualifications—and said plaintiff was denied this right 
because the Legislature of the State of Texas has 
passed a law with an emergency clause, fully set out 
in plaintiff’s petition authorizing the State Democratic 
Executive Committee to prescribe qualifications for its 
members, and said Democratic Executive Committee 
had prescribed that a Negro was not qualified to vote 
at a Democratic primary election, and such acts are 
in violation of the Constitution of the United States, 
which prohibits a citizen from being discriminated 
against in his right to vote because of his race and 
color.

6. The Court erred in holding that the Act of 
the Texas Legislature approved June 7, 1927, at the 
first called session of the Fortieth Legislature, which 
is designated as Article 3107, being Chapter 67 of the 
Laws of 1927 was not unconstitutional, and not in 
violation of the Fourteenth and Fifteenth Amendments 
of the Constitution of the United States, which is plead 
and set out in full in plaintiff’s petition.

7. The Court erred in holding that the resolution 
passed by the Democratic Executive Committee of 
Texas prior to July 28, 1928, set forth in plaintiff’s 
petition and is as follows:

“ Resolved: That all white Democrats who are
qualified and under the Constitution and Laws of



18
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 Chair­
man and Secretary of the State Democratic Exec­
utive Committee be directed to forward to each 
Democratic County Chairman in Texas a copy of 
this resolution for observance.”

was not a violation of the right of the plaintiff, a 
citizen of the United States, which denied him the 
right to vote in the Democratic primary of July 28, 
1928, in El Paso County, Texas, but said resolution 
was a direct violation of the constitutional rights of 
plaintiff.

8. The Court erred in holding that the Demo­
cratic primary of July 28, 1928, was not an election 
within purview and meaning of the Fifteenth Amend­
ment of the Constitution of the United States and 
Section 31, Title 8, U. S. C. A. (R. S. U. S. 2004) for 
the reason that in the case of Nixon v. Herndon, 273
U. S. 536, the Supreme Court of United States has 
held that such a primary is an election and that the 
denial of a citizen to vote in that election, constitution­
ally qualified was a denial of a legal right.

9. The Court erred in holding that the State of 
Texas, who has no right to discriminate against the 
citizen from voting in a Democratic primary in Texas 
as was held in Nixon v. Herndon, 273 U. S. 536 has 
the right to delegate that authority to the State Demo­
cratic Executive Committee of Texas, thus doing in­
directly what they can not do directly.



19
10. The Court erred in holding that the members 

of the State Democratic Executive Committee and the 
judges and clerks of the primary election were not 
officials of the State of Texas and not acting as offi­
cials of the State of Texas when performing their 
duties as prescribed by the Statutes of Texas—and 
in making a distinction between the instant case and 
the case of James 0. West vs. A. C. Bliley, et al., de­
cided by the Honorable United States District Court 
of the Eastern District of Virginia—in the Virginia 
case, the election judges and clerks were paid by the 
State, and in this case they were paid by the various 
candidates— such a distinction would make all fee offi­
cers private citizens and not officials.

11. The Court erred in holding that a State 
Democratic Executive Committee has a right to dis­
criminate against a citizen’s right to vote at a primary 
election because of his color—such a discrimination is 
in violation of the Fourteenth and Fifteenth Amend­
ments to the Constitution of the United States.

12. The Court erred in holding that the Dem­
ocratic State Executive Committee and the judges and 
clerks of the primary election of July 28, 1929, were 
not acting by authority of the State, and thus as 
agents of the State—and thus discriminating against 
a citizen of the United States on account of his color.

13. The Court committed fundamental error in 
sustaining defendant’s motion to dismiss plaintiff’s



20
case—for the reason that the petition stated a good 
cause of action at law.

Wherefore plaintiff-appellant prays that said 
errors he corrected and said cause be remanded for 
a new trial.

(Signed) Louis Marshall,
K nollenberg & Cameron, 

Attorneys for Plaintiff.
Filed August 30, 1929.

The cause is therefore here on the record for 
review. The motion to dismiss having been sustained. 
No evidence was offered and no additional pleadings 
were filed.

The case involves the right of the Negro Democrat 
citizen to vote in a Democratic primary in Texas. 
Section 3107 of the Texas Statute quoted in full in the 
petition is void and violates the Fourteenth and F if­
teenth Amendments to the Federal Constitution. Sec­
tion 3107 of the 1923 Statutes quoted in full in the 
petition was held to be unconstitutional in the case of 
Nixon v. Herndon, 273 N. S. supra, and Sec. 3107 
passed in lieu thereof in 1927. We now assert the 
1927 act to be void.



21

PROPOSITIONS OF LAW UPON WHICH 
APPELLANT RELIES FOR REVERSAL 

OF THE CASE.

POINT I.

A. The right of a citizen to vote, regardless of 
race, color or previous condition of servitude, is 
denied and abridged by a law which forbids him, on 
account of his race and color to vote in a primary 
election held under the Laws of Texas.

B. The State of Texas can not pass a law pro­
hibiting and denying a citizen the right to vote in a 
Democratic primary solely on the ground that he is a 
Negro.

C. A Statute of Texas that delegates to a Dem­
ocratic Executive Committee the right to deny a citi­
zen the right to vote in a primary election solely on 
the ground that he is a Negro (he being otherwise 
qualified) is void and in violation of the Fourteenth 
and Fifteenth Amendments to the Federal Constitution.

(1) Because such a law delegates a right the 
state does not possess.

(2) Such a delegation of authority gives the 
force of law to the acts of others, and thereby makes 
the acts of others (Democratic Executive Committee) 
law, which it (the state) can not make a law—or in 
other words, does indirectly that which it can not do 
directly.



22
POINT II.

The statute under consideration offends against 
the Fourteenth Amendment because it is a law abridg­
ing the privileges and immunities of citizens of the 
United States, and because it denies to persons and 
citizens within its jurisdiction the equal protection 
of the laws.

A. A  Democratic primary election in the State 
of Texas is a public election establishment, recognized 
and regulated by the laws of the State of Texas.

B. Casting a ballot in such a primary election 
is a vote within the meaning of the Fifteenth Amend­
ment and the right to such a vote is guaranteed by 
said amendment and there can be no discrimination on 
account of color.

POINT III.

The United States Court had jurisdiction to try 
this case. A  Federal question was involved within 
the meaning of Title 8, Sec. 43 of the United States 
Code.

A. The Fourteenth and Fifteenth Amendments 
have application to a primary election such as is pro­
vided by the Texas Legislature and a vote at a primary 
election in Texas is within the purview of said 
amendments.

B. A political party organized by virtue of the 
Laws of Texas, defining political parties, and subject­
ing themselves to such laws are not an independent



23
and voluntary organization, but are governed by the 
laws under which they organize and derive their 
powers from such laws.

C. A law concerning membership in such an 
organization is void if in violation of the Fourteenth 
or Fifteenth Amendments.

POINT IV.

The Statute of Texas, involved in this case, set 
out in full in the petition is void, because

A. It violates the Fourteenth Amendment to the 
Federal Constitution.

B. It violates the Fifteenth Amendment to the 
Federal Constitution.

C. A  right having been denied plaintiff, a citizen 
of the United States, he can assert it in this case in 
the manner in which he sues.



24

POINT ONE.

A. The right of a citizen to vote, regardless 
of race, color or previous condition of servitude, is 
denied and abridged by a law which forbids him, on 
account of his race and color to vote in a primary 
election held under the Laws of Texas.

B. The State of Texas can not pass a law pro­
hibiting and denying a citizen the right to vote in a 
Democratic primary solely on the ground that he is 
a Negro.

C. A Statute of Texas that delegates to a Dem­
ocratic Executive Committee the right to deny a citizen 
the right to vote in a primary election solely on the 
ground that he is a Negro (he being otherwise quali­
fied) is void and in violation of the Fourteenth and 
Fifteenth Amendments to the Federal Constitution.

(1) Because such a law delegates a right the 
state does not possess.

(2) Such a delegation of authority gives the 
force of law to the acts of others, and thereby makes 
the acts of others (Democratic Executive Committee) 
law, which it (the state), can not make law— or in 
other words, does indirectly that which it can not do 
directly.

Statement.

The facts in this case are fully set forth in the 
petition, which is set forth in full in the petition.



25
A uthorities.

Nixon v. Herndon, 273 U. S. 536; 71 Law Ed. 
759.

West v. Bliley, 33 Fed. (2) 177 (E. D. va), af­
firmed by United States Circuit in . . . .  
Fed. (2) .......

Love v. Wilcox, 28 S. W. (2) 515 (Supreme 
Court of Tex.).

Fourteenth Amendment to the Constitution. 
Fifteenth Amendment to the Constitution,
Sec. 31, Title 8, U. S. Code, formerly Sec. 

2004.
Child Labor Tex. Cases, 259 U. S. 20.
Standard Scales Co. v. Farrell, 249 U. S. 577. 
Home Telephone & Telegraph Co. v. Los 

Angeles, 227 U. S. 278?
YicJc Wo v. Hopkins, 118 U. S. 356.
Hammer v. Dogenhart, 247 U. S. 251. 
Williams v. Bruffey, 96 U. S. 176.
Cornell Law Review, Yol. XV, No. 2, page 262.

R emarks.

The appellant in this case is the same Dr. Nixon 
who was plaintiff in error in the case of Nixon v. 
Herndon, 273 U. S. 536. Mr. Justice Holmes has de­
cided in that case the following questions:

1. “ That private damages may be caused by 
said political acts and may be recovered for in 
a suit at law.”

2. “ If the defendant’s conduct was a wrong 
to the plaintiff the same reasons that allow a re­
covery 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.”



26
3. The State of Texas cannot pass a law that 

discriminates against a citizen from voting in a 
Democratic primary solely on color.

The question therefore arises— can the State of 
Texas do indirectly that which it can not do directly! 
Can it delegate authority which it does not possess? 
Can it say to the Democratic Executive Committee of 
Texas—we can not prohibit a citizen from voting in a 
Democratic primary because he is a Negro, but we will 
give you that authority—and when you make the dis­
crimination, we, the State of Texas, will give your dis­
crimination the effect of law.

The answer to this inquiry seems not to be open to 
doubt.

The Love Case, 28 S. W. (2) 515, decided by the 
Supreme Court of Texas, May 17th, 1930, seems to 
answer our questions. Mr. Love, a citizen of Texas, a 
prominent Democrat, had bolted his ticket in the 
National election in 1928. He voted for the Republican 
candidate for President. It became known that he 
would present himself as a candidate for Governor 
of Texas. The Democratic Executive Committee 
passed the following resolution:

“ First: Be it resolved, That this committee 
hereby extends an invitation to all quali­
fied voters, regardless of previous political views 
or affiliations, to enter and participate as voters 
in its nominating primaries and conventions who 
are willing to and do take the statutory party 
pledge.

“ Second: Be it resolved, That the Execu­
tive Committee prescribes the following quali-



27
fications in addition to those now prescribed 
by law, for candidates for state offices in the 
Democratic primaries of 1930, and that no appli­
cant or candidate for the Democratic nomina­
tion for state office who does not possess the 
following qualifications shall appear on the official 
ballot or be certified as a candidate in the Demo­
cratic primaries, to-wit:

“ 1. That in the last preceding general elec­
tion he must not have voted against any nominee 
or presidential elector of the Democratic Party, 
if he participated either in the primary elections 
or conventions of the Democratic Party in 1928, 
and took a pledge to support the nominees of the 
Democratic Party.

“ 2. That he must in good faith without any 
reservations pledge himself in writing filed with 
the Chairman of the Executive Committee not 
later than the date set for filing applications, to 
support all nominees of the Democratic Party 
during the year 1930.

“ 3. And that he does not now advocate 
a voter’s entering a party primary or conven­
tion and taking the prescribed pledge with reser­
vations mental or otherwise.

“ Third: That it is the sense of this com­
mittee that while we cannot legally act on the 
certification of applicants who desire to have 
their names placed on the Democratic primary 
ballot for state offices in 1930—that it is the 
sense of this committee that any present or 
proposed applicant for certification who voted 
in the Democratic primary in 1928, or partici­
pated in any of the primaries or conventions of 
the Democratic Party in 1928, and in said pri­
maries or conventions took the prescribed pledge 
to support the nominees of the party and then



28
broke Ms pledge and bolted the ticket, and voted 
for the nominees of any other party that by so 
doing he forfeited his right to the support of the 
Democratic Party, and forfeited his right to have 
his name placed on the Democratic primary 
ballot in 1930; and it is the further sense of this 
committee that any present or proposed appli­
cant who desires to have his name certified and 
placed on the Democratic primary ballot in 1930, 
shall be refused such certification who claims the 
right and intention, though he has participated 
in a Democratic primary for the nomination of 
candidates, thereafter, to repudiate the pledge 
taken and to vote against the party nominee if 
his judgment or conscience dictates.”

Mr. Love presented Ms name to the committee 
to be certified as a candidate for governor. The com­
mittee refused, or made known that they would refuse 
to certify his name because he bolted the ticket in 
1928.

Mr. Love then brought this proceeding in the 
Supreme Court of Texas and the Court granted him the 
relief.

Some of the Court’s language is pertinent to the 
question before us— on pages 522 and 523 we find:

“ The committee’s discretionary power is fur­
ther restricted by the statute directing that a 
single, uniform pledge be required of the pri­
mary participants. The effect of the statutes is 
to decline to give recognition to the lodgment of 
power in a State Executive Committee, to be 
exercised at its discretion. The statutes have 
recognized the right of the party to create an 
Executive Committee as an agency of the party 
and have recognized the right of the party to



29
confer upon that committee certain discretionary- 
powers, but have declined to recognize the right 
to confer upon the committee the discretionary 
power to exclude from participation in the party’s 
affairs anyone because of former political views 
or affiliations, or because of refusal to take any 
other than the statutory pledge. It is obvious, 
we think, that the party itself never intended to 
confer upon its Executive Committee any such 
discretionary power. The party when it selected 
its State Committee did so with full knowledge 
of the statutory limitations on that committee’s 
authority, and must be held to have selected the 
committee with the intent that it would act within 
the powers conferred, and within the limitations 
declared by the statute. Hence, the committee, 
whether viewed as an agency of the state or 
as a mere agency of the party, is not authorized 
to take any action Avhich is forbidden by an ex­
press and valid statute.”

And on page 525, the following:
“  (14) Moreover, the language of Article 3107 

is fairly susceptible of no other interpretation 
than that the Legislature intended the same quali­
fications to be prescribed by the State Committee 
for all participating in a party primary, whether 
as voters or candidates, and further that the same 
qualifications must be prescribed for all candi­
dates. By the resolutions of February 1, 1930, 
all qualified voters, regardless of previous politi­
cal views or affiliations are expressly invited 
to participate in the 1930 primaries as are all 
candidates save those for state offices. Because 
of the attempted discrimination between candidates 
and between certain candidates and voters, in 
violation of the statute, the resolutions cannot be 
upheld. ’ ’



30
Sec. 3107 referred to in the opinion, is the one 

in question in this case, and copied in full in the peti­
tion-—and was passed by the Texas Legislature in 
1927 in lieu of Sec. 3107 passed in 1923, and held 
void by the Supreme Court in the first Nixon case in 
violation of the Fourteenth Amendment.

Again the West Case supra, decided by the U. S. 
District Court of Virginia, 33 Fed. (2) 177, and affirmed 
by the 4th Circuit . . . .  Fed. (2) .........., we con­
tend is in point. The facts in the West Case and 
the instant case are practically identical, with the 
exception that the judges and clerks of the primary 
in Virginia are paid by the state and in Texas the 
expenses are paid by the candidates. If there is any 
other distinction in the two cases, we fail to find it.

An exhaustive review of the instant case has 
been made in the Cornell Law, Vol. XV, No. 2, page 
262, to which we invite the Court's attention.

We are unable to appreciate the trial court’s dis­
tinction. The fact that the judges in Virginia get their 
pay from the state and in Texas from the candidates 
can make no difference.

Texas, by statute, has legislated extensively on 
primaries. Compulsory primaries for all parties cast­
ing 100,000 votes at last general election. Art. 3101
R. C. S. 1925. (2) When the primary shall be held,
3102 idem, what the primary offices shall be and 
how chosen, 3104 idem, compulsory ballot, etc., 3109- 
3117 idem, expenses of primaries to be apportioned 
among candidates, 3108 idem, Compulsory County



31
Executive Committee and how chosen, 3118 idem, state 
convention, and how to choose a State Executive 
Committee, 3139 idem, and Sec. 2955 provided for the 
qualification of voter in both general and primary 
elections as follows:

“ Art. 2955. (2939) Qualifications for voting.— 
Every person subject to none of the foregoing dis­
qualifications who shall have attained the age of 
twenty-one years and who shall be a citizen of the 
United States, and who shall have resided in this 
State one year next preceding an election, and the 
last six months within the district or county in 
which he or she offers to vote, shall be deemed a 
qualified elector. The electors living in an unor­
ganized county may vote at an election precinct in 
the county to which such county is attached for 
judicial purposes; provided that any voter who is 
subject to pay a poll tax under the laws of this 
State or ordinances of any city or town in this 
State, shall have paid said tax before offering to 
vote at any election in this State and holds a re­
ceipt showing that said poll tax was paid before the 
first day of February next preceding such election; 
and, if said voter is exempt from paying a poll tax 
and resides in a city of ten thousand inhabitants or 
more, he or she must procure a certificate showing 
his or her exemptions, as required by this title. 
If such voter shall have lost or misplaced said tax 
receipt, he or she shall be entitled to vote upon 
making and leaving with the judge of the election 
an affidavit that such tax was paid by him or her, 
or by his wife or by her husband before said first 
day of February next preceding such election at 
which he or she offers to vote, and that said receipt 
has been lost or misplaced. In any election held 
only in a subdivision of a county for the purpose of 
determining any local question or proposition affect­
ing only such subdivision of the county, then in



32
addition to the foregoing qualifications, the voter 
must have resided in said county for six months 
next preceding such election. The provisions . of 
this article as to casting ballots shall apply to all 
elections including general, special and primary 
elections (Acts 1st C. S. 1905, p. 520; Acts 1st C. S. 
1917, p. 62; Acts 4th C. S. 1920, p. 10; Acts 1921, p. 
217; Acts 1923, p. 318).”

Therefore, the Democratic Executive Committee of 
Texas, and their duties are provided by law—the Acts 
of the Legislature—and Sec. 3107, the one delegating to 
the committee the right to say who can vote in the pri­
maries is only one of the many provisions relating to 
the powers of the committee.

The Court’s attention is called to the fact that Sec. 
3107 passed in 1927 has an emergency clause, which 
shows that the intention of the Texas Legislature is to 
avoid the effect of the decision of the Supreme Court 
by delegating to the Executive Committee the right to 
prevent a citizen from voting at a Democratic primary 
solely because of his color.

In short, the Legislature is attempting to delegate 
a power it does not possess—or to do indirectly that 
which it can not do directly. We earnestly contend that 
this cannot be done. The Supreme Court has declared the 
law—and its decision is entitled to respect and no effort 
should be made to evade it. The emergency clause is 
copied in full in the petition.

We have stressed the Love Case, supra, and the 
West Case, supra, for the reason they are recent 
decisions from courts of high standing and authority—■



33
but let us review the decision of the Supreme Court of 
the United States. We contend no other conclusion can 
be drawn from them than the one announced in the 
West Case.

It is a familiar principle of law that what cannot 
be done directly cannot be done indirectly. The pur­
pose of passing an act of the Legislature can be inquired 
into by the courts, and if in violation of the Constitu­
tion will be held unconstitutional by the courts.

In the Child Labor Tax Case, 259 U. S. 20; 66 L. 
Ed. 817, the Legislature attempted to regulate child 
labor by a revenue act. Judge Taft, in rendering that 
opinion says:

“ The amount is not to be proportioned in any 
degree to the extent of frequency of the departures, 
but is to be paid by the employer in full measure 
whether he employs five hundred children for a 
year, or employs only one for a day. Moreover, 
if he does not know the child is within the named 
age limit, he is not to pay; that is to say, it is only 
where he knowingly departs from the prescribed 
course that payment is to be exacted. Scienters 
are associated with penalties, not with taxes. The 
employer’s factory is to be subject to inspection at 
any time not only by the taxing officers of the 
Treasury, the Department normally charged with 
the collection of taxes, but also by the Secretary of 
Labor and his subordinates, whose normal function 
is the advancement and protection of the welfare 
of the workers. In the light of these features of 
the act, a court must be blind not to see that the 
so-called tax is imposed to stop the employment of 
children within the age limits prescribed. Its pro­
hibitory and regulatory effect and purpose are



34
palpable. All others can see and understand this. 
How can we properly shut our minds to it.

“ It is the high duty and function of this Court 
in cases regularly brought to its bar to decline to 
recognize or enforce seeming Laws of Congress 
dealing with subjects not intrusted to Congress, 
but left or committed by the supreme law of the 
land to the control of the states. We cannot avoid 
the duty even though it require us to refuse to give 
effect to legislation designed to promote the highest 
good. The good sought in unconstitutional legis­
lation is an insidious feature because it leads citi­
zens and legislators of good purpose to promote it 
without thought of the serious breach it will make 
in the ark of our covenant, or the harm which will 
come from breaking down recognized standards. In 
the maintenance of local self-government, on the 
one hand, and the national power, on the other, our 
country has been able to endure and prosper for 
near a century and a half.”

The same effect is the case of Hammer v. Dogen- 
hart, 247 U. S. 251; 62 L. Ed. 1101. There can be no 
question about the act of the Executive Committee be­
ing a legislative act, or an act done by virtue of legis­
lative enactment. In the case of Williams v. Bruffeij, 
96 U. S. 176; 24 L. Ed. 716, the Legislature of the State 
of Virginia during the rebellion, passed a law requiring 
persons who held any trust money belonging to northern 
sympathizers to deliver this money to a person named 
by the Confederated States of America, and that such 
delivery would be an acquittance of that debt. This 
was done in that case, and the question of whether or 
not the Federal Courts of the United States had juris­
diction to determine a case of this character, that is,



35
whether or not the Federal Courts had jurisdiction of 
this queston, Mr. Justice Fields, in the above case, says:

“ Any enactment, from whatever source origi­
nating, to which a state gives the force of law is 
a statute of the state, within the meaning of the 
clause cited relating to the jurisdiction of this Court. 
It would be a narrow construction to limit the term 
to such enactments as have gone through various 
stages of consideration by the Legislature. There 
may be many acts authorized by the Constitution of 
a state, or by the convention that framed it, which 
have not been submitted to the consideration of its 
Legislature, yet have all the efficacy of laws. By the 
only authority which can be recognized as having 
any legal existence, that is, the State of Virginia, 
this act of the unauthorized confederation was 
enforced as a law of the Commonwealth. Its valid­
ity was drawn in question on the ground that it was 
repugnant to the Constitution of the United States; 
and the decision of the court below was in favor of 
its validity. Its repugnancy was asserted in this, 
that it impaired the obligation of the contract be­
tween the plaintiffs and the deceased, and under­
took to release the latter from liability, contrary to 
the express prohibition of that instrument; and 
also in this, that it discriminated against the plain 
tiffs as a citizen of a loyal state, and refused to 
them the same privileges accorded to the citizens of 
Virginia, contrary to the provision declaring that 
‘ The citizens of each state shall be entitled to all 
the privileges and immunities of citizens in the 
several states.’ This provision has been held, in 
repeated adjudications of this Court, to prohibit dis­
criminating legislation by one state against the citi­
zens of another state, and to secure to them the 
equal protection of its lawTs, and the same freedom 
possessed by its own citizens in the acquisition and 
enjoyment of property. Corfield v. Coryell, 4 Wash.
C. C. 371; Ward v. Maryland, 12 Wall. 418 (79 U.



36
S. X X  449); Paul v. Virginia, 8 Wall. 168 (75 XT.
S. XTX 357). The enactment of the confederation 
which, by the assent of Virginia, was enforced as a 
law in that Commonwealth, and which is now in­
voked by the defendant, not only impaired but 
attempted to destroy the obligation of the contract 
o f the deceased with the plaintiffs; and it discrim­
inated against them as citizens of a state that 
maintained its allegiance to the Union. The de­
murrers to the special pleas raised these objections. 
The decision made involved the upholding of the 
Confederate enactment and the denial of the im­
munity claimed by the plaintiffs. It could nor 
have been made without passing upon both these 
points. It is sufficient to give this court jurisdic­
tion that, though not in terms specially stated in 
the pleadings, they were necessarily involved in the 
decision, and that without their consideration the 
judgment would not have been rendered. We have 
no doubt of our jurisdiction, and we proceed, there­
fore, to the merits of the case.”

This principle of law has been followed in subse­
quent cases (see Ford v. Surget, 97 U. S. 1018). And 
again in the case of Standard Scales Company v. 
Farrell, 249 U. S. 577; 63 L. Ed. 780, the question 
arose in New York from a bulletin by a department of 
the company, whose duty it was to see that scales were 
properly sealed and tested in that state. The official 
in charge of this business, or one of the subordinate 
officials, issued a bulletin of instructions which dis­
criminated very much against the use of the scales sold 
by the Standard Scales Company. They attempted to 
show jurisdiction in the Federal Court, and the right 
to strike down this regulation, because it was an enact­



37
ment or regulation having the effect of law. The 
Courts in this case said it was not, but Justice Brandeis 
said it might be considered obiter but it is very in­
structive in this case, and uses the following lan­
guage :

“ If the ‘ specifications’ had been issued as a 
regulation, that is, a law, we might have been 
called upon to inquire whether it was a proper 
exercise of the police power or was, as plaintiff 
contends, void because arbitrary and unreasonable, 
or because it was discriminatory, or as interfer­
ing with interstate commerce. For the protection 
of the Federal Constitution 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 Legislature, or an act of any 
subordinate instrumentality of the state exercising 
delegated legislative authority, like an ordinance 
of a municipality or an order of a commission. 
Great Northern R. Co. v. Minnesota, 238 U. S. 
340, 59 L. Ed. 1337, P. TJ. R. 1915D, 701, 35 Sup. 
Ct. Rep. 753; Home Tele. Tele. Co. v. Los 
Angeles, 227 IT. S. 278, 286-288, 57 L. Ed. 510, 514, 
515, 33 Sup. Ct. Rep. 312; Washington, ex rel., 
Oregon R. & Nav. Co. v. Fairchild, 224 TJ. S. 510, 
56 L. Ed. 863, 32 Sup. Ct. Rep. 535; Grand Trunk 
Western R. Co. v. Railroad Commission, 221 TJ. S. 
400, 403, 55 L. Ed. 786, 787, 31 Sup. Ct. Rep. 537. 
But since the ‘ specifications’ are not in the nature 
of a law or regulation, the prohibitions of the 
Federal Constitution cannot apply.

“ The District Court did not err in dismissing 
the bill; and its judgment is affirmed.’ ’

And again, in the Home Telephone & Telegraph 
Company v. Los Angeles, 227 TJ. S. 278; 57 L. Ed. 510, 
the telephone company in Los Angeles was contesting



38
an ordinance fixing the price of telephone service. In 
this case, the Court says:

“ In other words, the proposition is that the 
Amendment deals only with the acts of state 
officers within the strict scope of the public powers 
possessed by them, and does not include an abuse 
of power by an officer as the result of a wrong 
done in excess of the power delegated. Here again 
the settled construction of the Amendment is that 
it presupposes the possibility of an abuse of a 
state officer or representative of the powers pos­
sessed, and deals with such a contingency. It pro­
vides, 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 forbids, 
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 repre­
sentative of a state, in the exercise of the authority 
with which he is clothed, misuses the power pos­
sessed to do a wrong forbidden by the Amendment, 
inquiry concerning whether the state has au­
thorized the wrong is irrelevant, and the Federal 
judicial power is competent to afford redress for 
the wrong by dealing with the officer and the result 
of his exertion of power.

“ To speak broadly, the difference between the 
proposition insisted upon and the true meaning of 
the Amendment is this: that the one assumes that 
the Amendment virtually contemplates alone 
wrongs authorized by a state, and gives only power 
accordingly, while in truth the Amendment con­
templates the possibility of state officers abusing 
the powers lawfully conferred upon them by doing 
wrongs prohibited by the Amendment. In other 
words, the Amendment, looking at the enforce­



39
ment of the rights which it guarantees and to the 
prevention of the wrongs which it prohibits, pro­
ceeds not merely upon the assumption that states, 
acting in their governmental capacity, in a com­
plete sense, may do acts which conflict with its 
provisions, but, also, conceiving, which was more 
normally 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, provided against all and every such 
possible contingency. Thus, the completeness of 
the Amendment in this regard is but the comple­
ment of its comprehensive inclusiveness from the 
point of view of those to whom its prohibitions 
are addressed. 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 
which could only be done upon the predicate that 
there was such power, the inquiry as to the repug­
nancy of the Act to the 14th Amendment cannot be 
avoided by insisting that there is a want of power. 
That is to say, a state officer cannot, on the one 
hand, as a means of doing a wrong forbidden by 
the Amendment, proceed upon the assumption of 
the possession of state power, and at the same 
time, for the purpose of avoiding the application of 
the Amendment, deny the power, and thus ac­
complish the wrong. To repeat: for the purpose 
of enforcing the rights guaranteed by the Amend­
ment when it is alleged that a state officer, in virtue 
of state power, is doing an act which, if per  ̂
mitted to be done, prima facie would violate the 
Amendment, the subject must be tested by assum­
ing 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 au­
thority.”

This case tends to show that the act of the 
Executive Committee has the effect of law, or a legis­



40
lative enactment based upon a statute, which says, by 
inference, “ You can discriminate against a voter be­
cause he is a Negro.”

In the case of Tick Wo v. Hopkins, 118 U. S. 312, 
30 L. Ed. 220, we have a case that seems to be very 
much in point. The City of San Francisco passed an 
ordinance regulating laundries in the City of San 
Francisco. The ordinance might have been considered 
fair on its face, but the arbitrary way in which it was 
enforced made it unconstitutional. On pages 227 and 
228, the Court says:

“ Though the law itself be fair on its face and 
impartial in appearance, yet, if it is applied and 
administered by public authority with an evil eye 
and an unequal hand, so as practically to make un­
just and illegal discriminations between persons in 
similar circumstances, material to their rights, the 
denial of equal justice is still within the prohibition 
of the Constitution. This principle of interpreta­
tion has been sanctioned by this court in Hender­
son v. Mayor, etc. of New York, 92 U. S. 259 (Bk. 
23, L. Ed. 543); Chy Luny v. Freeman, 92 TJ. S. 
275 (Bk. 23, L. Ed. 550); Ex parte Va., 100 IT. 8. 
339 (Bk. 25 L. Ed. 676); Neal v. Delaware, 103 IT. 
S. 370 (Bk. 26 L. Ed. 267), and Soon Hing v. 
Crowley (supra).

“ The present cases, as shown by the facts dis­
closed in the record, are within this class. It 
appears that both petitioners have complied with 
every requisite, deemed by the law or by the 
public officers charged with its administration, 
necessary for the protection of neighboring prop­
erty from fire, or as a precaution against injury 
to the public health. No reason whatever, ex­
cept the will of the supervisors, is assigned why



41
they should not be permitted to carry on, in the 
accustomed manner, their harmless and useful oc­
cupation, on which they depend for a livelihood. 
And while this consent of the supervisors is with­
held from them and from two hundred others who 
have also petitioned, all of whom happened to he 
Chinese subjects, eighty others, not Chinese sub­
jects, are permitted to carry on the same business 
under similar conditions. The fact of this dis­
crimination is admitted. No reason for it is shown, 
and the conclusion cannot be resisted, that no 
reason for it exists except hostility to the race 
and nationality to which the petitioners belong, 
and which in the eye of the law is not justified, 
and the public administration which enforces it is 
a denial of the equal protection of the laws and a 
violation of the Fourteenth Amendment of the 
Constitution. The imprisonment of the petitioners 
is therefore illegal, and they must be discharged.”

The statute in question in this case is clearly within 
the rule laid down by this case. The act itself gives 
the Executive Committee, one of the creatures of the 
statute, a right to say and they did say that, because a 
man is a Negro, he has not the right of suffrage, which 
is a direct violation of the Fourteenth Amendment.

POINT TWO.

The statute under consideration offends against the 
Fourteenth Amendment because it is a law abridging 
the privileges and immunities of citizens of the United 
States, and because it denies to persons and citizens 
within its jurisdiction the equal protection of the 
laws.



42
A. A  Democratic primary election in the State 

of Texas is a public election established, recognized 
and regulated by the laws of the State of Texas.

B. Casting a ballot in such a primary election is 
a vote within the meaning of the Fifteenth Amendment 
and the right to such a vote is guaranteed by said 
amendment and there can be no discrimination on 
account of color.

A uthorities, P oint Two.

Statutes of Texas, 1925 Revision, Secs. 3100 
to 3153, Title 50, Chap. 13—pertaining 
to primary elections.

United States Constitution, Fourteenth and 
Fifteenth Amendments.

United States Code, Title 8, Sec. 31.
Guinn v. United States, 238 U. S. 347.
Myers v. Anderson, 238 U. S. 367.
Anderson v. Myers, 183 Fed. 223.
United States v. Reese, 92 U. S. 214.
Strandie v. West Virginia, 100 U. S. 303.
Ex parte Siebold, 100 U. S. 371.
Ex parte Yarborough, 110 U. S. 551.
Love v. Griffith, 266 U. S. 32.
United States v. Gruikshank, 92 U. S. 542.
State ex rel. Moore v. Meharg, 287 S. W. 670.

The laws of Texas recognize a primary election.
Title 50, Chapter 13, Secs. 3100 to 3153 govern 

primary elections.
Section 3100 defines a “ primary election”  as an 

election held by an organized political party for the 
purpose of nominating candidates to be voted for at 
a general or special election.



43
Sec. 3101 provides for a compulsory election for

all political parties that cast 100,000 votes at last 
general election.

The resolution passed by the Democratic Exec­
utive Committee in 1928, which prevented the appellant 
from voting, is as follows:

“ 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 Democratic county chairman in 
Texas a copy of this resolution for observance.”

It is a well known fact that in Texas a nomina­
tion at a Democratic primary election is tantamount 
to an election. In 1926 more than 700,000 votes were 
cast for the Democratic nominee for governor, and 
considerably less than 100,000 votes were cast in the 
general election for both Democratic and Republican 
nominees for governor. According to the 1920 census, 
741,694 Negroes lived in Texas, and by the rule invoked 
by the Democratic State Executive Committee, 741,694 
citizens were as effectively disfranchised as they were 
before the passage of the Thirteenth, Fourteenth and 
Fifteenth Amendments.

The courts of Texas have recognized the fact that 
a general election in Texas is a mere gesture, while 
the real contest is in the Democratic primary.



44
In State ex rel. Moore v. Meharg, 287 S. W. 760, 

the Court, in an election contest case, 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 general election. In other words, barring 
certain exceptions a primary election is equiva­
lent to a general election. ’ ’

In the case of Love v. Griffith, 266 U. S. 32, a 
Negro was deprived of a vote in the Democratic 
primary by a resolution of the City Democratic Exec­
utive Committee of Houston. The election was over 
when the case got to the Supreme Court, but Mr. 
Justice Holmes used this very significant language:

“ 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 Com­
mittee was for a single election only that had 
taken place long before the decision of the Appel­
late Court. No constitutional rights of the plain­
tiffs 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.”

Professor Merriam in his book on Primary Elec­
tions, which was published in 1908, since which time the 
ideas by him expressed have been greatly extended, 
further says at page 116:

“ The theory of the party as a voluntary 
association has been completely overthrown by the



45
contrary doctrine that the party is in reality a 
governmental agency subject to legal regulation 
and control. The element of public concern in the 
making of nominations has been strongly empha­
sized, and the right of the Legislature to make 
reasonable regulations to protect and preserve the 
purity and honesty of elections has been vigor­
ously asserted.”

In 23 Michigan Law Review, 279, the decision in 
Chandler v. Neff, 298 Fed. Rep. 515, on which the 
appellee relies, received elaborate comment in an able 
article written by Meyer M. Brown, Esq. It will be 
found worthy of consideration in its entirety.

The following passages are especially in point:
“ What in their nature is peculiar to primary 

elections that should differentiate them from the 
public election and exempt them from the opera­
tion of the Constitution! It has been pointed out 
that the right to choose candidates for public 
office whose names shall appear on the official 
ballot is as valuable as the right to vote for them 
after they are chosen is of precisely the same 
nature. People v. Board of Election Comm’rs, 
221 111. 9. The primary election has the effect of 
selecting from the large possible field of choice 
for the office a few candidates whose names are 
to be printed on the ballot at the general election. 
This final election is a further, but similar, limi­
tation; it is the selection of one from the few. 
That the second selection should be called an elec­
tion while the first should not, would seem like an 
unreasonable distinction. In accord with this view 
is the holding that since, under the primary sys­
tem, there is scarcely a possibility that any person 
will or can be elected to office unless he shall be 
chosen at a primary election, a primary election



46
must be regarded as an integral part of the proc­
ess of choosing public officers and as an election 
within the meaning of the constitutional provi­
sions defining the rights of voters. People v. 
Board of Election Comm’rs, supra. * * *
Modern primary elections have not only the same 
essential nature as the general elections, as shown 
above, but the machinery and details of conduct­
ing them are generally the same in both cases. 
Primary elections are held at the same public poll­
ing places as the general elections, with the same 
election officials in charge. The ballots which are 
printed and paid for by the state are counted 
by government election officials, and the names of 
the winners are printed on the ballots at the 
general election. In case of a primary election 
dispute, recourse is had to the same election com­
missioners or judges of election as in the case of 
general elections. Not only is the expense of 
holding primaries paid by the government out of 
the general taxes, but they are completely con­
trolled and regulated by the State, rather than by 
party leaders or bosses as was the case under the 
‘ King Caucus’ regime, the convention system and 
the early form of primary. Hermann v. Lampe, 
175 Ky. 109. The modern primary election is thus 
seen to be on a par with general elections in regard 
to their actual conduct, public nature and govern­
mental control.

While the general elections are usually thought 
of as being of more importance than the primaries, 
the contrary is often true, for in many states the 
voting strength and solidarity of some one party 
is such that the contest for nomination of candi­
dates is practically equivalent to an election. 
State v. Breffeihl, 130 La. 904. In Texas, victory 
in a primary, on the Democratic side, means prac­
tically certain election. Merriam p. 84. ‘ No 
court can blind its eyes to this universally known



47
fact. * * * Of what use is it to enforce the
Constitution only in general elections, when, in 
fact, the primary elections are the decisive elec­
tions in this state in the choosing of public officers.’ 
Ch. J. Phillips, in Koy  v. Schneider, 110 Tex. 
369.”

But it is argued that the Fifteenth Amendment does 
not expressly refer to voting at primaries. That is 
true. It does not descend to particulars. It deals with 
the all-inclusive subject, “ the right to vote,”  and, un­
less intellectual blindness were to be attributed to the 
earnest and high-minded statements who sponsored 
this Amendment, that right must be deemed to relate 
to any form of voting and for any purpose and to any 
part of the process whereby what is intended to be 
accomplished by voting is brought about. There is 
certainly nothing in this Amendment which declares 
that voting at primaries is to be excepted from its 
scope.

It is said that in 1870, when the Fifteenth Amend­
ment was adopted, there were no primary elections 
and that, therefore, the right to vote at a primary 
election could not have been contemplated. We reply 
that in 1870 the so-called Australian ballot was un­
known. Voting machines had not been invented, and 
other possible methods of voting than the primitive 
methods then in vogue, e. g., voting viva voce, or by a 
show of hands, or by a ballot thrust into the hands 
of the voter by the poll workers, had not been con­
ceived. Neither had the initiative, the referendum,



48
the recall, been introduced into our political vocabu­
lary. Can anybody have the hardihood to claim that 
for these reasons the newer methods and purposes 
of voting are not covered by the Constitution? Its 
language is adequate to include any act or conception 
or purpose which relates to or substantially affects 
the free exercise in its essence of the right to vote.

When, by Article 1, Section 8, Subdivision 3, of 
the Constitution in a few words, Congress was given 
“ the power to regulate commerce among the several 
states,”  our instrumentalities of commerce were 
limited to stage coaches and wagons on land and to 
sloops, rafts, and rowboats on the water. The articles 
which then came within the scope of commerce were 
pitifully few, compared with its present vast expan­
sion. But this simple phrase sufficed to include, as 
they were from time to time devised, as instrumentali­
ties of commerce, steamboats, railroads, aeroplanes, 
the telegraph, the telephone, and the radio. They like­
wise became the authority for the creation of the 
Interstate Commerce Commission, the Federal Trade 
Commission, the enactment of the Employers’ Liability 
Act, and numerous other far-reaching agencies for 
the regulation of commerce.

Subdivision 7 of the same section empowered 
Congress “ to establish post offices and post roads.”  
Yet who in 1787 would have conceived the possibility, 
latent in these words, in reference to which .Mr. Chief 
Justice White said, in Lewis Publishing Co. v. Morgan, 
229 II. S. 301, 302:



49
“ And the wise combination of limitation with 

flexible and fecund adaptability of the simple yet 
comprehensive provisions of the Constitution are 
so aptly illustrated by a statement in the argu­
ment of the government as to the development 
of the postal system, that we insert it as fol­
lows :

‘ Under that six-word grant of power the 
great postal system of this country has been built 
up, involving an annual revenue and expenditure 
of over five hundred millions of dollars, the main­
tenance of 60,000 post offices, with hundreds of 
thousands of employes, the carriage of more than 
fifteen billions of pieces of mail matter per year, 
weighing over two billions of pounds, the incor­
poration of railroads, the establishment of rural 
free delivery system, the money-order system, by 
which more than a half billion of dollars a year 
is transmitted from person to person, the postal 
savings bank, the parcel post, an aeroplane mail 
service, the suppression of lotteries, and a most 
efficient suppression of fraudulent and criminal 
schemes impossible to be reached in any other 
way.’ ”

These illustrations relate only to material things. 
In so far as they are concerned, the elasticity of the 
constitutional language has been marvelously vindi­
cated. It is possible that the language of the same 
Constitution relating to human rights, and intended to 
bring about the realization of the noble conception of 
human equality before the law, and the prevention of 
discrimination, shall be crippled, hampered and de­
prived of its very life by a narrow and technical in­
terpretation, which woxild defeat its underlying pur­
pose. It is possible that the expression of an exalted



50
human purpose shall after half a century he made 
meaningless by the employment of an artificial mech­
anism?

There is still another illustration which adds to 
the strength of our contention. It is afforded by the 
Nineteenth Amendment. Its form and language are 
identical with the terms of the Fifteenth Amendment 
until we reach the last words. Both begin:

“ The rights of citizens of the United States 
to vote shall not be denied or abridged by the 
United States or by any state on account

M

The Fifteenth Amendment continues with the 
words “ race, color, or previous condition of servi­
tude.”  The Nineteenth Amendment continues with the 
single word “ sex.”

Nobody today pretends that a woman may not 
take part in a primary election without further au­
thority than that conferred by the Nineteenth Amend­
ment, so long as she possesses the other qualifica­
tions requisite to the exercise of the right of suffrage. 
In other words, she may not be prevented from voting 
at a primary election on account of her sex. Of course, 
under the Texas Statute, if she is a Negro, her sex 
would not save her from its discriminatory purpose. 
It is true that when the Nineteenth Amendment came 
into force on August 26, 1920, voting at primary elec­
tions, unknown fifty years before, had become familiar. 
Yet, would it not be an absurdity to say that in 1920 
ihe right to vote, so far as it related to women, in­



51
eluded the right of voting at a primary election, where­
as at the same time the right of a Negro to vote at 
a primary election did not exist because when the F if­
teenth Amendment was adopted there were no primary 
elections.

The provisions of the Nineteenth Amendment 
might very well have been included by an amendment 
to Article 15 of the Amendments to the Constitution, 
so that the article might have read: “ The rights of
citizens of the United States to vote shall not be denied 
or abridged by the United States or by any state on 
account of sex, race, color or previous condition of 
servitude.”  Could it then have been contended that 
under such a provision of the Constitution the right 
of women to vote at primaries could not be denied or 
abridged, but that the right of Negroes to vote could 
nevertheless be denied and abridged, because the same 
words had two different meanings due to the fact that 
they originated in two different periods of our social 
development.

(7) The history of the Thirteenth, Fourteenth 
and Fifteenth Amendments discloses that it was the 
purpose of the framers to make them self-executing 
from the moment of their adoption, and to confer upon 
the Negroes ipso facto political equality.

In United States v. Reese, 92 U. S. 214, Mr. 
Justice Hunt, although his was a dissenting opinion, 
made the statement which has never been questioned:

“ The existence of a large colored population
in the Southern States, lately slaves and neces-



52
sarily ignorant, was a disturbing element in our 
affairs. It could not be overlooked. It con­
fronted us always and everywhere. Congress de­
termined to meet the emergency by creating a 
political equality, by conferring upon the freed- 
man all the political rights possessed by the 
white inhabitants of the state. It was believed 
that the newly enfranchised people could be most 
effectually secured in the protection of their 
rights of life, liberty, and the pursuit of happi­
ness, by giving to them that greatest of rights 
among freemen—the ballot. Hence the Fifteenth 
Amendment was passed by Congress, and adopted 
by the states. The power of any state to de­
prive a citizen of the right to vote on account 
of race, color, or previous condition of servitude, 
or to impede or to obstruct such right on that 
account, was expressly negatived. It was de­
clared that this right of the citizen should not be 
thus denied or abridged.

“ The persons affected were citizens of the 
United States; the subject was the right of these 
persons to vote, not at specified elections or for 
specified elections or for specified officers, not for 
federal officers or for state officers, but the right 
to vote in its broadest terms.”

In Ex parte Yarborough, 110 U. S. 651, 665, Mr.
Justice Miller said:

“ While it is quite true, as was said in this 
court in United States v. Reese, 92 U. S. 214, that 
this article gives no affirmative right to the 
colored man to vote, and is designed primarily to 
prevent discrimination against him whenever the 
right to vote may be granted to others, it is 
easy to see that under some circumstances it may 
operate as the immediate source of a right to vote. 
In all cases where +he former slave holding states



53
had not removed from their Constitution the words 
‘ white man’ as a qualification for voting, this 
provision did, in effect, confer on him the right 
to vote, because, being paramount to the state 
law, and a part of the state law, it annulled the 
discriminating word white, and thus left him in 
the enjoyment of the same right as white persons. 
And such would he the effect of cmy future con­
stitutional provision of a state which should give 
the right of voting exclusively to white people, 
whether they be men or women. Neal v. Dela­
ware, 103 U. S. 370.

In such cases this Fifteenth Article of Amend­
ment does, proprio vigore, substantially confer on 
the Negro the right to vote, and Congress has the 
power to protect and enforce that right.

In the case of United States vs. Reese, so 
much relied on by counsel, this court said in regard 
to the Fifteenth Amendment, that ‘ it has invested 
the citizens of the United States with a new consti­
tutional right which is within the protecting power 
of Congress. That right is an exemption from dis­
crimination in the exercise of the elective franchise 
on account of race, color, or previous condition of 
servitude.’ This new constitutional right was 
mainly designed for citizens of African descent. 
The principle, however, that the protection of the 
exercise of this right is within the power of Con­
gress, is as necessary to the right of other citizens to 
vote as to the colored citizen, and to the right to 
vote in general as to the right to be protected 
against discrimination. ’ ’

In Guinn v. United States, 238 U. S. 347, Mr. Chief 
Justice White, considering the Fifteenth Amendment, 
said at page 362:

“ While in the true sense, therefore, the 
Amendment gives no right of suffrage, it was long



54
ago recognized that in operation its prohibition 
might measurably have that effect; that is to say, 
that as the command of the Amendment Avas self­
executing and reached Avithout legislative action the 
conditions of discrimination against Avhich it was 
aimed, the result might arise that as a consequence 
of the striking down of a discriminating clause a 
right of suffrage would be enjoyed by reason of the 
generic character of the provision which would re­
main after the discrimination was stricken out. 
Ex parte Yarborough, 110 U. S. 651; Neal v. Dela­
ware, 103 U. S. 370. A familiar illustration of this 
doctrine resulted from the effect of the adoption of 
the Amendment on state constitutions in which at 
the time of the adoption of the Amendment the 
right of suffrage was conferred on all white male 
citizens, since by the inherent power of the Amend­
ment the word white disappeared and therefore all 
male citizens without discrimination on account of 
race, color or previous condition of servitude came 
under the generic grant of suffrage made by the 
state.

With these principles before us how can there 
be room for any serious dispute concerning the 
repugnancy of the standard based upon January 1, 
1866 (a date which preceded the adoption of the 
Fifteenth Amendment), if the suffrage provision 
fixing that standard is susceptible of the signifi­
cance which the government attributes to it. In­
deed, there seems no escape from the conclusion 
that to hold that there was even possibility for dis­
pute on the subject would be but to declare the F if­
teenth Amendment not only had not the self-exe­
cuting power which it has been recognized to ha\Te 
from the beginning, but that its provisions were 
wholly inoperative because susceptible of being 
rendered inapplicable by mere forms of expression 
embodying no exercise of judgment and resting up­
on no discernible reason other than the purpose to



55
discard the prohibitions of the Amendment by 
creating a standard of voting which on its face 
was in substance but a revitalisation of conditions 
which when they prevailed in the past had been 
destroyed by the self-operative force of the Amend­
ment.”

This resolution passed by the Democratic Executive 
Committee by virtue of the statute takes from Negroes 
who are qualified as voters under the laws and Consti­
tution of the State of Texas, and who are bona fide 
members of the Democratic Party, the right to partici­
pate in the Democratic primary election which is con­
ferred on all other persons coming within that defini­
tion. It likewise classifies qualified voters who are bona 
fide members of the Democratic Party by permitting all 
persons who are white to vote at Democratic primary 
elections, and prohibits all who are black from so 
voting.

Independently, therefore, of the Fifteenth Amend­
ment, we contend that this statute is a violation of the 
Fourteenth Amendment, which brings us to a considera­
tion of the scope of the latter amendment as interpreted 
by this Court. In reference to it Mr. Justice Strong- 
said in Strauder v. West Virginia, 100 U. S. 306, where 
a statute in effect singled out and denied to colored citi­
zens the right and privilege of participating in the 
administration of the law as jurors because of their 
color, though qualified in all other respects:

“ This is one of a series of constitutional pro­
visions having a common purpose; namely, secur­
ing to a race recently emancipated, a race that



56
through many generations had been held in slavery, 
all the civil rights that the superior race enjoy. The 
true spirit and meaning of the Amendments, as we 
said in the Slaughter-House Cases, (16 Wall. 36), 
cannot be understood without keeping in view the 
history of the times when they were adopted, and 
the general objects they plainly sought to accom­
plish. At the time when they were incorporated into 
the Constitution, it required little knowledge of 
human nature to anticipate that those who had 
long been regarded as an inferior and subject race 
would, when suddenly raised to the rank of citizen­
ship, be looked upon with jealousy and positive 
dislike, and that state laws might be enacted or 
enforced to perpetuate the distinctions that had be­
fore existed. Discriminations against them had 
been habitual. It was well known that in some 
states laws making such discriminations then 
existed, and others might well be expected. * * * 
It was in view of these considerations that the 
Fourteenth Amendment was framed and adopted. 
It was designed to assure to the colored race the 
enjoyment of all the civil rights that under the law 
are enjoyed by white persons, and to give to that 
race the protection of the general government, in 
that enjoyment, whenever it should be denied by 
the states. It not only gave citizenship and the 
privileges of citizenship to persons of color, but it 
denied to any state the power to withhold from 
them the equal protection of the laws, and author­
ized Congress to enforce its provisions by appro­
priate legislation. To quote the language used by 
us in the Slaughter-House Cases, “ No one can fail 
to be impressed with the one pervading purpose 
found in all the Amendments, lying at the founda­
tion of each, and without which none of them would 
have been suggested—we mean the freedom of the 
slave race, the security and firm establishment of 
that freedom, and the protection of the newly made



57
fieeman and citizen from the oppressions of those 
who had formerly exercised unlimited dominion 
over them.”

The opinion then discusses the terms of the Four­
teenth Amendment and the necessity of construing it 
liberally to carry out the purposes of the framers, and 
then proceeds to consider the equal protection clause:

^ h a t  is this but declaring that the law in 
the States shall be the same for the black as for 
the white; that all persons, whether colored or 
white, shall stand equal before the laws of the 
States, and, in regard to the colored race, for whose 
protection the amendment was primarily designed 
that no discrimination shall be made against them 
by law because of their color. The words of the 
Amendment, it is true, are prohibitory, but they 
contain a necessary implication of positive immu- 
mty, or right, most valuable to the colored race—the 
right to exemption from unfriendly legislation 
against them distinctively as colored—exemption 
from legal discriminations, implying inferiority in 
civil society, lessening the security of their enjoy­
ment of the rights which others enjoy, and discrim­
inations which are steps reducing them to the con­
dition of a subject race.

That the West Virginia Statute respecting 
juries the statute that controlled the selection of 
the grand and petit jury in the case of the plaintiff 
in error—is such a discrimination ought not to be 
doubted. Nor would it be if the persons excluded 
by it were white men. If in those states where the 
colored people constitute a majority of the entire 
population a law should be enacted excluding all 
white men from jury service, thus denying to them 
the privilege of participating equally with the blacks 
m the administration of justice, we apprehend no 
one would be heard to claim that it would not be a



58
denial to white men of the equal protection of the 
laws. Nor if a law should be passed excluding all 
naturalized Celtic Irishmen, would there be any 
doubt of its inconsistency with the spirit of the 
Amendment. The very fact that colored people 
are singled out and expressly denied by a statute 
all right to participate in the administration of the 
law, as jurors, because of their color, though they 
are citizens, and may be in other respects fully 
qualified, is practically a brand upon them, affixed 
by the law, an assertion of their inferiority, and a 
stimulant to that race prejudice which is an im­
pediment to securing td individuals of the race 
that equal justice which the law aims to secure to 
all others.”

To the same effect are opinions in
Virginia v. Rives, 100 U. S. 313, and
Ex parte Virginia, 100 U. S. 339.

In McPherson v. Blachner, 146 U. S. 1, 39, is stated:
‘ ‘ That object of the Fourteenth Amendment in 

respect of citizenship was to preserve equality of 
rights and to prevent discrimination as between 
citizens, but not to radically change the whole theory 
of the relations of the state and federal govern­
ments to each other, and of both governments to the 
people. In re Kemmler, 136 U. S. 436.

The inhibition that no state shall deprive any 
person within its jurisdiction of the equal protec­
tion of the laws was designed to prevent any per­
sons or class of persons from being singled out as a 
special subject for discriminating and hostile legis­
lation. Pembina Company v. Pennsylvania, 125
U. S. 181, 188.”

In Buchanan v. Warley, 245 U. S. 76 (the Louisville 
Segregation Case), Mr. Justice Day said:



59
“ The effect of these Amendments was first dealt 

with by this Court in The Slaughter House Cases, 
16 Wall. 36. The reasons for the adoption of the 
Amendments were elaborately considered by a court 
familiar with the times in which the necessity for 
the Amendments arose and with the circumstances 
which impelled their adoption. In that case Mr. 
Justice Miller, who spoke for the majority, pointed 
out that the colored race, having been freed from 
slavery by the Thirteenth Amendment, was raised 
to the dignity of citizenship and equality of civil 
rights by the Fourteenth Amendment, and the 
States were prohibited from abridging the privileges 
and immunities of such citizens, or depriving any 
person of life, liberty, or property without due 
process of law. While a principal purpose of the 
latter Amendment was to protect persons of color, 
the broad language used was deemed sufficient 
to protect all persons, white or black, against dis­
criminatory legislation by the States. This is now 
the settled law. In many of the cases since arising 
the question of color has not been involved and 
the cases have been decided upon alleged violations 
of civil or property right irrespective of the race 
or color of the complainant. In The Slaughter 
House Cases it was recognized that the chief in­
ducement to the passage of the Amendment was 
the desire to extend federal protection to the 
recently emancipated race from unfriendly and dis­
criminating legislation by the States.”
See also:

Gilson v. Mississippi, 161 U. S. 565.
Carter v. Texas, 177 U. S. 442, 447.
Rogers v. Alabama, 192 U. S. 226, 231.

A mere reference to Yick Wo v. Hopkins, 118 U. 
S. 356 and to the classic opinion of Mr. Justice 
Matthews in that case will suffice for the purposes of



60
this argument. In the cases cited, without reference 
to the fact that it was intended to discriminate against 
Chinese laundrymen, they were not named in the 
ordinance, although in its operation, as well as in its 
purpose, it was designed to differentiate between them 
because of their race and others who conducted 
laundries.

See also:
Trwax v. Reich, 239 U. S. 33.
Ah Kow v. Nunan, 5 Sawyer 552.
Re Tiburcio Parrott, 1 Fed. 481.
Re Ah Chong, 2 Fed. 733.
People ex rel. Farrington v. Mesching, 187 

N. Y. 18.
Royster Guan Co. v. Virginia, 253 TJ. S. 412.

Illustrations could be multiplied, but none of them 
would be so directly applicable here as are those to 
which attention has been directed.

The vice of this legislation appears on its face, and 
by the emergency clause. It lays down a general 
principle which confers the right to vote at a Demo­
cratic primary election upon all voters qualified under 
the Constitution and Laws of the State of Texas who 
are bona fide members of the Democratic Party. Then 
follows the delegation of authority which attempts to 
avoid the decision of the Supreme Court in the first 
Nixon case and delegates authority which it does not 
possess.

If this is not arbitrary delegation of authority to 
discriminate by race and color; if it does not constitute



61
a complete deprivation of the eqnal protection of the 
laws; if it is not an abridgment of privileges and im­
munities of a citizen of the United States, then it is 
impossible to conceive of any acts which come within 
those terms. Every white man and every white woman 
who possesses the qualifications mentioned in the act, 
however ignorant or degraded, or mentally unfit, 
whether naturalized or native, may vote without let or 
hindrance, and no Negro, though possessing all the 
qualifications prescribed by the statute, however in­
telligent and patriotic and industrious and useful a 
citizen he may be, though he and his ancestors may 
have lived and labored within the States from the time 
of its organization, is denied that right. It is indeed 
void—just as void as the Act of 1923, stricken down 
by the Supreme Court in the first Nixon case.

POINT THREE.

The United States Court had jurisdiction to try 
this case. A  federal question was involved within the 
meaning of Title 8, Sec. 43 of the United States Code.

A. The Fourteenth and Fifteenth Amendments 
have application to a primary election such as is pro­
vided by the Texas Legislature and a vote at a primary 
election in Texas is within the purview of said Amend­
ments.

B. A  political party organized by virtue of the 
Laws of Texas, defining political parties, and sub­
jecting themselves to such laws are not an independ­



62
ent and voluntary organization but are governed by 
tbe laws under which they organize and derive their 
powers from such laws.

C. A  law concerning membership in such an 
organization is void if in violation of the Fourteenth 
or Fifteenth Amendments.

A uthorities.

Nixon v. Herndon, 273 IT. S. 536; 71 Law Ed. 
759.

Secs. 31 and 43 of Title 8, United States Code.
Sec. 3001 Revised Statutes of Texas and the 

following Sections governing primary
n| p p f i  /YTIC

Love v. Griffith, 266 U. S. 32.
West v. Bliley, 33 Fed. (2) 177 (D. C.) af­

firmed by 4th Circuit June, 1930, not yet 
officially reported.

Love v. Wilcox, 28 S. W. (2) 515 (S. C'. Texas).
State ex rel. Moore v. Meharg, 287 S. W. 670 

(Tex. App.).
Newberry v. United States, 256 S. W. 232.
Sec. 2955, R. S. Texas.

R emarks.

The trial court in the instant case 34 Fed. (2) 464, 
has held that he had no jurisdiction to try this case 
and a primary election in Texas is not an “ election”  
within the purview and meaning of the Fifteenth 
Amendment and Section 31, Title 8 of the United 
States Code, stating among other things that primary 
elections were unknown at the time of the adoption of 
the Amendment.



63
We have already referred to the last reason in 

this brief by referring to the position the government 
has taken in the regulation of interstate commerce by 
eleven words in the Constitution when at the time of 
the adoption of the Constitution only ox carts, boats 
etc. were in existence, still that provision of the Con­
stitution is applied in all its vigor to railroads, aero­
planes, etc. We will not repeat that here but refer 
to it.

Now, is a primary election an “ election” ? Let us 
see. West v. Bliley, supra, is our answer. Surely that 
is exactly in point, and decided by the United States 
Circuit Court of Appeals for the Fourth Circuit on 
June, 1930. The District Court’s opinion is found in 
33 Fed. (2) 177 and the District Court’s opinion is 
adopted by the United States Circuit Court of Appeals. 
We rely upon this opinion. We will not quote from 
it for we ask the Court to read it in full. But the 
Supreme Court through Mr. Justice Holmes has spoken 
on this question. It may be said to be addictum, but 
coming from Mr. Justice Holmes it is entitled to great 
weight. He said:

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 hindrance in the way of taking it 
up. But that is not the situation. The rule 
promulgated by the Democratic Executive Com­
mittee was for a single election only, that had 
taken place long before the decision of the appel­
late court. No constitutional rights of the plain­
tiffs in error were infringed by holding that the 
cause of action ceased to exist.



64
It is clear that Mr. Justice Holmes, had he been 

the trial judge would have granted the relief sought, and 
this too in a city primary election.

The trial court cites and quotes from an opinion 
of Chief Justice Phillips of Texas in Waples v. Mar- 
raset, 108 Tex. 5; 184 S. W. 180 the following:

“ A  political party is nothing more or less 
than a body of men associated for the purpose of 
furnishing and maintaining the prevalence of cer­
tain political principles or beliefs in the public 
policies of the government. As rivals for popu­
lar favor they strive at the general elections for 
the control of the agencies of the goverment as the 
means of providing a course for the government in 
accord with their political principles and the ad­
ministration of those agencies by their own ad­
herents. * * * But the fact remains that the ob­
jects of political organizations are intimate to 
those who compose them. They do not concern the 
general public. * * * They perform no govern­
mental function. They constitute no governmental 
agency. The purpose of their primary elections is 
merely to enable them to furnish their nominees as 
candidates for the popular suffrage. * # * To pro­
vide nominees of political parties for the people to 
vote upon in the general elections is not the busi­
ness of the State. * * * Political parties are political 
instrumentalities.’ ’

We believe Chief Phillips would protest on his 
language being construed to mean that a primary elec­
tion was not an election Avithin the purview of the F if­
teenth Amendment for in a strong, vigorous dissenting 
opinion in Koy v. Schneider, 218 S. W. 879 e. c. 488, 
he says:



65
“ The primary election provided by our laws 

is admittedly an election of that character and con­
sequence. The language of the Constitution is 
plainly broad enough to include it, whatever may 
be the argument as to an intention to include it. 
Is it not fair and reasonable, therefore, to assume 
that the Constitution was meant to include such 
an election and to govern it? When the broad 
purpose of the Constitution in Sections 1 and 2 of 
Article 6 is looked to, in my opinion no other 
conclusion is possible.”

And further in the opinion this language:
“ Waples v. Marraset, 108 Tex. 5; 184 S. W. 

180, L. R. A. 1917A 253 gives no support to the 
validity of this act, and cannot be made authority 
for a holding which sustains it. The question 
there was not as to whether primary elections of 
political parties when prescribed by law were 
public elections in the sense of the Constitution, 
but whether their purpose was a public purpose 
for the furtherance of which the tax funds of' the 
counties of the state might be expended. It was 
held that the payment of the expenses of holding 
such elections for the benefit of political parties 
was not for a public purpose.”

It is true that this language is in a dissenting 
opinion, but as the opinion is written by Chief Justice 
Phillips, the same judge who wrote the opinion in 
Waples v. Marraset, it is helpful in determining what 
he meant when he wrote Waples v. Marraset.

Then in Nixon v. Herndon, 273 IT. S. 339, 71 Law 
Ed. 759, we contend the question of jurisdiction and 
the question of a primary election being an “ election”  
within the purview of the Amendments to the Con­
stitution is settled. In the brief of counsel for the



66
defendant in error in that case, which is printed in the 
report of the case in the Law Edition this point is 
made:

“ There can be no doubt, so far as the law of 
Texas is concerned, that the Democratic nominat­
ing primary held in El Paso in July, 1924, was not 
an election in which the plaintiff in error had a 
constitutional right to vote.”

In the course of the opinion this language is used:
“ If the defendants’ conduct was a wrong to 

the plaintiff the same reasons that allow a re­
covery 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.”

The court then decides the case and reverses it be­
cause a constitutional right has been denied the plain­
tiff in error. The Supreme Court surely decided juris­
diction existed and a primary election was an election 
within the purview of the Constitutional Amendment, 
or the judgment rendered by it could not have been 
rendered.

Now is the Democratic Party of Texas, just a 
voluntary organization? Is it subject to no regula­
tions as to its members just like a lodge, a society, 
a Sunday School, a church. This is the stock argu­
ment. Let us see. See. 3100 defines a political party. 
It is quoted elsewhere in this brief. Minute rules or 
laws have been passed for its government, its Execu­
tive Committee, times for holding elections, returns of 
elections, powers of judges, clerks, etc.— oath to be taken 
by the officers of the primary election. Page after page



67
in the statutes are provided for its organization and its 
administration, Sec. 3100 et seq.

We now assert that any political party or organi­
zation complying with those laws that govern it 
is no longer just an independent and voluntary organ­
ization but is one, subject to all valid laws concerning 
it, including membership— Sec. 2955, R. S. Texas, pro­
vides for qualification for a vote in all general, special 
and primary elections.

This illustration to us seems helpful.
Three or more men can organize a corporation 

under the laws of Texas to enter the mining business. 
The corporation laws provide fully for their powers, 
government, etc. When so organized they are governed 
by the corporation laws of Texas. They cannot 
enter into the banking business per se.

These same men can enter into a voluntary agree­
ment or partnership to do the same mining if they 
choose. When they do they are not hound by the cor­
poration laws of Texas because they choose to conduct 
their business in another manner. These same men 
may, if they so will, do whatsoever they choose, be­
come bankers, merchants or any thing else.

Now this illustration applies to a political party 
in Texas. They can choose to become a political 
party and organize under the provisions of Article 
3100 et seq. or can do otherwise. The Democratic 
Party of Texas has so organized. They have elected 
their Executive Committee, chosen their officers and 
in every way complied with the Statutory Laws of Texas



68
governing political parties. They are therefore bound 
by all law and by the Fourteenth and Fifteenth Amend­
ments of the Federal Constitution.

They may have their voluntary organizations if 
they choose, it no doubt can be done, but the Demo­
cratic Party of Texas has not done so. It is organized 
as a political party under and by virtue of the laws 
of Texas, Sec. 3100 et seq. It is therefore governed 
by all valid laws, and sufferage in it is a constitutional 
right and not a privilege to be granted or refused.

See. 3105 provides for the duties of judges of the 
primary elections and gives them powers to make 
arrests, etc., as follows:

Art. 3105. (3090) Judges of Primary.—Judges 
of primary elections have the authority, and it 
shall be their duty, to administer oaths, to pre­
serve order at the elections, 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 with­
in one hundred feet of the entrance of the polling 
place, and shall arrest, or cause to be arrested, 
any one engaged in the work of conveying voters 
to the polls in carriages or other mode of con­
veyance, except as permitted by this title (Id.).

Sec. 3122 provides for precaution against fraud. 

Sec. 3139 provides for the election of an Executive 
Committee as follows:

Art. 3139. (3140) State Convention.—All
party state conventions to announce a platform of



69
principles and announce nominations for governor 
and state offices shall, except as otherwise provided, 
meet at such places as may be determined by 
the parties respectively on the Tuesday after the 
second Monday after the fourth Saturday in 
August 1926, and every two years thereafter and 
they shall remain in session from day to day until 
all nominations are announced and the work of 
the convention is finished. Said convention shall 
elect a chairman of the executive committee and 
thirty-one members thereof, one from each sena­
torial district of the state, the members of said 
committee to be those who shall be recommended 
by the delegates representing the counties com­
posing the senatorial districts respectively, each 
county voting its convention strength, each of 
whom shall hold said office until his successor is 
elected; and, case of vacancy, a majority of the 
members of said committee shall fill the same 
by electing some eligible persons thereto (Acts 
1st, C. S. 1905, p. 549; Acts 4th, C. S. 1918, p. 193).

Surely the members of the Executive Committee 
are something more than mere members. They have 
duties to perform, duties for their party. They are acting 
as some sort of officials. Their office and their duties 
are provided for by law. To that extent they are 
officials.

Sec. 3104 provides that the judges of the primary 
election, the appellees in this case, shall take an oath 
before entering upon their duties and the oath is 
the same as is taken by judges of a general election.

Thus a full and complete system of rules which are 
laws have been passed by the State of Texas govern­
ing the holding of a primary election in Texas. The



70
State Executive Committee acts only by virtue of the 
law that creates it. It has no separate existence, and no 
existence except by law. Its acts and the resolutions 
under discussion are the result of law making it 
possible and creating it. The definition of a primary 
election is defined by Sec. 3100 to be exactly what the 
representation of the Democratic Party (the State 
Executive Committee) was, and which by virtue of 
law passed the offensive resolution depriving the 
Negro of a right to vote at the Democratic primary.

POINT FOUR.

The Statute of Texas, involved in this case, set out 
in full in the petition is void because

A. It violates the Fourteenth Amendment of the 
Federal Constitution.

B. It violates the Fifteenth Amendment to the 
Federal Constitution.

C. A right having been denied plaintiff, a citizen 
of the United States, he can assert it in this case in 
the manner in which he sues.

A uthorities.

Nixon v. Herndon, 273 U. S. 536, 71 Law Ed.
759.

Love v. Wilcox, 28 S. W. (2) 515.
West v. Bliley, 33 Fed. (2) 177 (D. C.)

Affirmed May 17, 1930 by Fourth Circuit.



71

R emarks.

The Love Case, supra, has been decided since we 
tried the instant case in the Trial Court.

The West Case was tried in the Trial Court just 
prior to the time we tried the instant case. It reached 
the U. S. Circuit Court of Appeals for the Fourth Cir­
cuit and was affirmed on May 17th, 1930, just as we were 
completing this brief.

If we had had the benefit of the Love Case and 
West Case as affirmed at the time of the trial, we be­
lieve that the decision in the instant case would have 
been different.

We earnestly insist that they are both authority for 
our case. It would seem as though the distinction made 
in the instant case by Judge Boynton, because the 
judges are paid in Texas by the candidates and in Vir­
ginia by the state makes a difference, is answered in 
the West Case. The U. S. Circuit Court of Appeals in 
the West Case says:

“ It is also contended that the provision in the 
Virginia primary law, providing in part for the 
payment of the expenses of the primary in question 
out of the public treasury of the locality in which 
such primary is held, is not valid. We do not 
think it necessary to go into this question as not 
being pertinent to the issues involved.”

The Fourteenth and Fifteenth Amendments have 
been violated by the Legislature of Texas in passing the 
Act of 1927. The amendments passed as a result of the 
Civil War for the benefit of the Negro—the former



72
slave—must be recognized as a part of the fundamental 
law.

The amendments have been a part of the Constitu­
tion for more than half a century. They guarantee the 
Negro equal civil and political rights. The appellant 
in this case has been denied equal political rights.

We pray,
That the case be reversed and the case remanded 

for a trial on its merits.
All of which is,

Respectfully submitted,

F eed C. K nollenberg,
El Paso, Texas,

E. F. Cameron,
El Paso, Texas,

A rthur B. Spingarn,
New York,
Attorneys for Appellant.







(tart of tin llxnUh Mutts
October Term, 1931 

No. 265

L. A. NIXON,
Petitioner,

against

JAMES CONDON and C. H. NOLLE,
Respondents.

On W rit of Certiorari to the United States Circuit 
Court of A ppeals for the F ifth  Circuit.

P E T I T I O N E R ’ S P O I N T S .

James Marshall,
Nathan B. Margold, 
A rthur B. Spingarn,
F red C. K nollenberg,
E. F. Cameron,

Petitioner’s Counsel.
N. H. K ugelmass,

On the Brief.

The Heela Press, 225 Tariek St., N. T. Tel. WAlker 5-1480.





SUBJECT INDEX.

Preliminary Statement................................................... 1
The Petition....................................................................... 2
The Resolution in Question...................  3
The Statute in Question...... ..........................................  3
Grounds of Demurrer.....................................................  6
The Decision of the District Court. . . ........................ 6

PAGE

The Decision of the Circuit Court of Appeals............ 7
Jurisdiction......................................................................  8
Summary of Petitioner’s Argument.............................  13

Point I— The interest protected in Nixon v. Herndon 
was the right to vote in a primary and is the same 
interest invaded here, and the classification rejected 
by that case was based on race and color and is the 
same classification applied here. The only question 
before this Court is whether the invasion of this 
interest and this classification were the result of 
State action.................................................................. 15-17

Point II—The petitioner in being deprived of the 
right to vote at a primary because of his color was 
denied the equal protection of the laws by the State 
of Texas, in violation of the Fourteenth Amend­
ment ................................. .............................................18-44

A. The power of respondents to deny petitioner’s 
right to vote at the primary election was 
derived from the resolution of the State 
Democratic Executive Committee adopted 
pursuant to authority granted by Chapter 
67 of the Laws of 1927. Both the statute 
and the resolution adopted thereunder vio­
lated the Fourteenth Amendment because



11
PAGE

they authorized and worked a classification
based on color................................................ 18-28

Legislative Intention................................. 18
The “ Inherent Power” Argument.................... 21
“ Recognition” of Power Argument................  26

B. Even if the Democratic State Executive Com­
mittee in adopting the resolution restricting 
voting at Democratic primaries to “white” 
Democrats exceeded the powers delegated 
to it by the Legislature in Chapter 67 of 
the Laws of 1927, its action, though ultra 
vires, constituted State action in violation 
of the Fourteenth Amendment because it 
authorized and worked a classification 
based on color............................................... 28-31

C. The Democratic State Executive Committee,
acting in relation to primary elections, was 
part of the governmental machinery of the 
State. The resolution of that committee 
restricting voting in Democratic primaries 
to “white” Democrats was State action and 
violated the Fourteenth Amendment and 
afforded respondents no justification in de­
nying to petitioner the right to vote........ 31-35

D. Respondents by reason of their office as judges
of election derived their power to deny the 
petitioner the right to vote at the primary 
election from the statutes of the State. In 
applying that power to a State purpose in 
such a way as to work a color classification 
they violated the Fourteenth Amendment, 
irrespective of Chapter 67 of the Laws of 
1927 and the resolution of the Democratic
State Executive Committee.......................... 35-44

Authority Vested in Judges of Election.. 36
Consequences of Abuse of Powers..................  39
Expenses of Primaries...............................  43



m

Point III—The right of petitioner to vote in the pri­
mary regardless of race or color was denied and 
abridged by the State of Texas, in violation of the 
Fifteenth Amendment..............................................45-55

A Primary Vote is a Vote.................................  45
Fifteenth Amendment Like Nineteenth............ 48

Historical Error...................................................  19
The Newberry and Other Cases Distinguished.. 50

Petitioner’s Eight to Vote Abridged Even if Not 
Denied...............................................................  53

PAGE

Point IV—Conclusion 55-56





TABLE OF CASES.

Anderson v. Ashe, 62 Tex. Civ. App. 262...................... 52
Ashford v. Goodwin, 103 Tex. 491.................................  52

Bailey v. Alabama, 219 U. S. 219...................................  18
Binderup v. Pathe Exchange, 263 U. S. 291................ 12
Bliley v. West (Circuit Ct.), 42 F. (2d) 101........8, 32, 56
Bliley v. West (District Ct,), 33 F. (2d) 177.............. 8
Briscoe v. Boyle, 286 S. W. 275 (Tex. Civ. App.) .  ..

23, 25, 26, 27, 32, 33, 48

Child Labor Tax Case, 259 U. S. 20.............................. 18
Clancy v. Clough (Tex.), 30 S. W. (2d) 569. . . .27, 33, 43 
Commonwealth v. Rogers, 63 N. E. Rep. 421 (Mass.) 48 
Commonwealth v. Willcox, 111 Va. 849........................  32

Ex parte Yarbrough, 110 U. S. 651................................ 49
Fidelity & Deposit Co. v. Tafoya, 270 U. S. 426..........  28
Ford v. Surget, 97 U. S. 594.........................................  34
Friberg v. Scurry (Tex.), 33 S. W. (2d) 76..............  27

General Investment Co. v. N. Y. Central R. R., 271
U. S. 228.......................................................................  12

Guinn v. United States, 238 U. S. 347.......................... 21

Hammer v. Dagenhart, 247 U. S. 251............................. 18
Hendricks v. The State, 20 Tex. Civ. App. 178, 49

S. W. 705.......................................................................  43
Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278. .

14, 27, 28, 29, 31, 34, 35, 40 
Hunt v. Reese, 92 U. S. 214  46

Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120___  43
King Mfg. Co. v. Augusta, 277 U. S. 100...................... 34
Koy v. Schneider, 110 Tex. 369..................................... 52, 54

PAGE



VI

Lincoln v. Hapgood, 11 Mass. 350................................ 43
Lindgren v. United States, 281 U. S. 38........................ 22
Love v. Griffith, 266 U. S. 32..................................... 8,10,11
Love v. Taylor (Tex.), 8 S. W. (2d) 795.................... 27
Love v. Wilcox, 28 S. W. (2d) 515, 119 Tex. 256 ... .

19, 24, 26, 30, 31, 33

Moore v. Meharg, 287 S. W. 670 (Tex. Civ. App.) . . .34, 53 
Mvers v. Anderson, 238 U. S. 368................................8,21

Neal v. Delaware, 103 U. S. 370.....................................  49
Newberry v. United States, 256 U. S. 232.. . .14, 50, 51, 54 
Nixon v. Condon (District Ct.), 34 F. (2d) 4 6 4 ....  1,6 
Nixon v. Condon (Circuit Ct.), 49 F. (2d) 1012. . . .  1, 7 
Nixon v. Herndon, 273 U. S. 536.. . .4, 8,13,15,16,17, 45

Raymond v. Chicago Traction Co., 207 U. S. 20..........  28
Robinson v. Holman, LSI Ark. 428; appeal dis., cert, 

denied, 282 U. S. 805................................................. 11,56

Standard Scale Co. v. Farrell, 249 IJ. S. 571.............. 34
Swafford v. Templeton, 185 II. S. 487............................ 8

PAGE

Tumev v. Ohio, 273 U. S. 510.........................................  43

Waples v. Marrast, 108 Tex. 5,. 184 S. W. ISO.. . . . . .  34
Ward v. Love County, 253 U. S. 17................................ 8
Wester in an v. Mimms, 220 S. W. 178 (T ex.)................  48
White v. Lubbock, 30 S. W. (2d) 72 (Tex. Civ. App.) 27
Wiley v. Sinkler, 179 U. S. 58.......................................  8
Williams v. Bruffy, 96 U. S. 176.................................... 34
Willis v. Owen, 43 Tex. 41............................................... 43

Yarbrough, Ex parte, 110 U. S. 651 
Yick Wo v. Hopkins, 118 U. S. 356

............ 49
14, 20, 29, 41



TEXTS, LAW REVIEW ARTICLES, ETC.

American Law Reports, 53: 595............................. .. 43
Bouvier’s Law Dictionary............................................... 46
Brown, Primary Disenfranchisement of the Negro,

23 Mich. Law Rev. 279............................................32,53
Cornell Law Quarterly, 15: 267...................................  43
Funk & Wagnall’s Standard Dictionary...................... 46
Harvard Law Review, 43: 467.....................................  23
Merriam & Overacker, Primary Elections (1928 Edi­

tion) .............................................................................32,49
Michigan Law Review, 23: 279....................................32, 53
Minnesota Law Review, 12: 321, 470..........................22, 49
Sargent, Law of Primary Elections, 12 Minn. Law

Rev. 321, 470................................................................22,49
Union League Club of Philadelphia, Essays on Poli­

tics, 1868........................................................................  49
University of Pennsylvania Law Review, 72: 2 2 2 ....  43
World Almanac................................................................. 53
Yale Law Journal, 39: 423............................................ 23

PROVISIONS OF CONSTITUTION.
Fourteenth Amendment................. 5, 8,13,14,16, 29, 41, 56
Fifteenth Amendment................5, 6, 8,14,16, 29, 45, 53, 56
Nineteenth Amendment...................................................  48
Article I, Section IV ...................................................... 50,51

FEDERAL STATUTES.
Judicial Code:

Section 24—
( I )  ............................................................................  5
( I I )  ..........................................................................  5,9
(1 2 ) .............................................................................5,12
(1 4 ) .............................................................................5,12

Revised Statutes.....................................................................

PAGE



v i i i

F ederal Statutes (continued) page

United States Code:
Title 8—

Section 31...................................................6, 8,10,14, 46
Section 43.................   10

Title 28, Section 41—
( I )  ............................................................................. 5
(II)  ................................... 5,9
(1 2 ) .............................................................................5,12
(1 1 ) .............................................................................5,12

TEXAS STATUTES.

Laws of 1927, Chapter 67 (present Art. 3107, Rev.
Civ. Stat.)............................................. 2, 3, 4,16,18-31, 55

Penal Code of 1925:
Title Six, Chapter 4—

Article 217.....................    38
Article 218...........................................   38
Article 231.................................      38
Article 236............................................................... 46, 47
Article 241.................................................................  47

Generally...........................................................38, 47, 48
Revised Civil Statutes of 1925:

Elections, Chapter 8—
Article 2954...............................................................  37
Article 2955...............................................................  38

Elections, Chapter 13—
Articles 3006-3007.................................................. 36,37
Article 3093-a (former Art. 3107).........................4,15
Article 3104..............................................................  36
Article 3107 (Chap. 67 of Laws of 1927)...........

2, 3, 4,16,18-31, 55
Article 3110 ..................................................... 22, 33, 48
Article 3121..............................................................  47

Generally.................................................................. 33, 36
Resolution of Democratic State Executive Commit­

tee ...................................................2, 3,16,18-35, 39, 40, 55



&npvvm (tart nf %  T&nxtib States
October Term, 1931.

No. 265.

L. A. Nixon ,
Petitioner,

against

James Condon and C. H. N olle,
Respondents.

PETITIONER’S POINTS.

Preliminary Statement.

This case comes before this Court on writ of certiorari 
to the United States Circuit Court of Appeals for the Fifth 
Circuit, granted October 19, 1931 (R. 31), to review a 
judgment entered in that court on May 16, 1931 (R. 30-31), 
which affirmed a judgment of the United States District 
Court for the Western District of Texas, filed July 31, 
1929, dismissing the petition (R. 10).

The opinion of the District Court is printed in the 
record at pages 15-27 and reported 34 F. (2d) 464.

The opinion of the Circuit Court of Appeals is; printed 
in the record at pages 28-30 and reported 49 F. (2d) 1012.

The petitioner, a citizen of the United States and of 
the State of Texas, brought this action in the United States



District Court for tlie 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. 1).

The Petition.

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. 2-3).

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. 1-2). On that day the petitioner presented him­
self at the polls and offered to take the pledge to support 
the nominees of the Democratic primary election held on 
that day and to comply in every respect with the valid 
requirements of the laws of Texas, save as they violated 
the privileges conferred upon and guaranteed to him by 
the Constitution and laws of the United States. He re­
quested 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 petitioner to vote or to furnish him with a ballot and 
stated as the reason that- under instructions from the 
Democratic county chairman, pursuant to resolution of 
the State Democratic Executive Committee, adopted under 
the authority of Chapter 67 of the Laws of 1927 of Texas, 
only white Democrats were allowed to participate in the 
Democratic primary then being held (R. 2-3). The re­
spondents ruled that the petitioner was not entitled to 
vote in the Democratic primary because he was a Negro 
(R. 3, 5). The resolution of the State Democratic Execu­
tive Committee of Texas, under the terms of which re­
spondents purported to act, reads as follows (R. 3) :



3
The Resolution in Question.

“R esolved: That all white Democrats who are 
qualified 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 Democratic County 
Chairman in Texas a copy of this resolution for 
observance.” (Black type ours.)

The statute under the authority of which the Democratic 
State Executive Committee adopted this resolution, Chap­
ter 67 of the Laws of 1927, First Called Session (Article 
3107, Chapter 13 of the Revised Civil Statutes of Texas), 
gave authority to the State Executive Committee to pre­
scribe qualifications of party members and determine who 
shall be qualified to vote or participate in such political 
party. The statute was passed as an “emergency” meas­
ure, because, as the statute itself proclaims, “the fact that 
the Supreme Court of the United States has recently held 
Article 3107 invalid, creates an emergency and an impera­
tive public necessity that the constitutional rule requiring 
bills to be read on three several days in each House be 
suspended * * * ” (R. 4-5).

The Statute in Question.
“ A uthorizing P olitical Parties Through State

Executive Committees to P rescribe Quali­
fications of Their Members.

(H. B. Ro. 57)
Chapter 67.

An Act to repeal Article 3107 of Chapter 13 of 
the Revised Civil Statutes of Texas, and substi­
tuting in its place a new article providing that 
every political party in this State through its State 
Executive Committee shall have the power to pre­
scribe the qualifications of its own members and 
shall in its own way determine who shall be quali-



4
fled 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:

‘A r t ic l e : 3107. Every political party in this 
State through its State Executive Committee 
shall have the power to prescribe the qualifica­
tions of its own members and shall in its own 
way determine who shall be qualified to vote or 
otherwise participate in such political party; pro­
vided that no person shall ever be denied the right 
to participate in a primary in this State because 
of former political views or affiliations or because 
of membership or non-membership in organiza­
tions 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 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 petition (and the history of
* The statute involved in Nixon v. Herndon, i.e., the old Article 3107: 

“Article 3093a. All qualified voters under the laws and constitution 
of the State of Texas who are bona fide members o f  the democratic party 
shall be eligible to participate in any democratic party primary election, 
provided such voter complies with all laws and rules governing party 
primary elections; however, in no event shall a negro be eligible to par­
ticipate in a democratic party primary election held in the State o f Texas, 
and should a negro vote in a democratic primary election, such ballot 
shall be void and election officials are herein directed to throw out such 
ballot and not count the same.” (Italics ours.)



5
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 disfranchisement of 
Negroes which this Court held could not be done by direct 
action of the Legislature (B. 5-6).

The petition also alleges that at the time of the passage 
of Chapter 67 of the Laws of 1927 of Texas the Democratic 
Party was the only political party in the State which held 
a primary election and that the statute, when it referred 
to the State Executive Committee, was enacted for the 
purpose of preventing the petitioner and other Negroes 
who were members of the Democratic Party from partici­
pating in Democratic primary elections (E. 6). Further­
more, the petition sets forth that there are many thousands 
colored Democratic voters in the State of Texas situated 
as is the petitioner; that Texas is a State which is nor­
mally so overwhelmingly Democratic that nomination on 
the Democratic ticket is equivalent to election, and that 
the only real contest at the polls is that in the Democratic 
primaries. And, finally, it is alleged that the acts of the 
respondents in denying the petitioner the right to vote at 
the Democratic primary in question were wrongful, un­
lawful and without constitutional warrant and deprived 
him of valuable political rights, to his damage in the sum 
of $5,000 (B. 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 petitioner the equal protection of 
the laws of Texas, in violation of the Fourteenth Amend­
ment to the Constitution of the United States; (b) because 
the petitioner’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 Legis­
lature of Texas on account of his race and color, in viola-



6
tion of the Fifteenth Amendment to the Constitution; 
(c) because 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. 6-7).

Grounds of Demurrer.

The respondents made a motion to dismiss. In addition 
to controverting the allegations of the petition with respect 
to the constitutionality of the statute and the proceedings 
it was urged that the subject-matter of the suit is political 
and that the Court was without jurisdiction to determine 
the issues or to award the relief prayed fo r ; that the alle­
gations of the petition were not sufficient to constitute a 
cause of action; that irrespective of statutory authority, 
the State Executive Committee of a political party had 
authority to determine who should comprise its member­
ship. The motion also put into issue the allegation that 
the petitioner was a Democrat (R. 8-10). The last ground 
presents an issue of fact which could not be determined 
on a motion addressed to the pleadings.

The Decision of the District Court.

Honorable Charles A. Boynton, District Judge, who 
heard the motion, granted the motion to dismiss in an 
opinion (R. 15-27, 34 F. [2d] 464) in which he said:
(1) that the Fourteenth and Fifteenth Amendments to 
the Constitution of the United States cannot be violated 
except 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 Com­
mittee and the judges of election, complained of in the



petition, 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 Democratic Party possess inherent power to prescribe 
the qualifications of those wTho may vote at its primaries, 
irrespective of and without reference to Chapter 67 of 
the Laws of 1927; and (4) that a primary election is not 
an election within the meaning of the Fifteenth Amend­
ment, because (a) a political party is not a governmental 
agency, and (b) at the time the Thirteenth, Fourteenth 
and Fifteenth Amendments were adopted, primary elec­
tions were unknown and therefore may not be held to be 
covered by these Amendments.

The Decision of the Circuit Court of Appeals.

The Circuit Court of Appeals, in affirming the District 
Court, rendered an opinion by Bryan, C.J. (R. 28-30; 
49 F. (2d) 1012), which held as follows: (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 en­
actment of a statute which expressly discriminated against 
Negroes, whereas here the statute merely recognized an 
existing power on the part of the Democratic State Ex­
ecutive Committee to fix the qualifications of its members;
(3) that the election officials who rejected the petitioner 
were appointed by the Democratic State Executive Com­
mittee, and were not paid by the State, and (4) that the 
decision in West v. Bliley is distinguishable because there 
the State of Virginia conducted the primary and paid the



8
expenses thereof, whereas in Texas the State merely regu­
lates a privately conducted primary election so as to secure 
a fair and honest election.

Jurisdiction.

The jurisdiction of Federal Courts over this suit is pro­
vided by Section 41, Title 28 of the United States Code 
(Judicial Code, Sec. 24, as amended). It is there provided, 
in subdivision 1, that the District Court shall have original 
jurisdiction over “  * * * 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
#  -2- -X* ??

This is a suit of a civil nature at common law for a sum 
in excess of $3,000 and the matter in controversy arises 
under (1) the Fourteenth Amendment to the Constitution 
of the United States; (2) the Fifteenth Amendment to 
the Constitution of the United States; (3) Section 31, 
Title 8 of the United States Code.

In similar circumstances this Court has assumed juris­
diction.

Wiley V. Sinkler, 179 U. S. 58, 65.
Swafford V. Templeton, 185 U. S. 487.
Myers v. Anderson, 238 U. S. 368.
Nixon v. Herndon, 273 U. S. 536.
Ward v. Love County, 253 U. S. 17, 22.
Cf. Love v. Griffith, 266 U. S. 32.

In Bliley v. West, 42 F. (2d) 101, the Circuit Court of 
Appeals for the Fourth Circuit affirmed the order of the 
District Court for the Eastern District of Virginia (33
F. (2d) 177, opinion by Groner, D.J.) overruling a de



9
murrer to a petition seeking the same relief as is sought 
in this case. There, the Democratic State Convention, 
like the Democratic State Committee here, adopted a 
resolution that only white persons should participate in 
Democratic primaries, and the petitioner, a Negro, was 
not permitted to vote in a Democratic primary in the 
State of Virginia. No attempt was made to bring than 
case up for review by this Court.

The jurisdiction of this Court is not open to attack on 
the ground that the subject-matter of the suit is “political.” 
That argument was disposed of in Nixon v. Herndon, 
supra*

Subdivision 11 of Section 41 of Title 28 of the Judicial 
Code likewise gives a basis for jurisdiction by the Federal 
Courts, for it authorizes suits for injuries on account of 
acts done under the laws of the United States “ or to en­
force the right of citizens of the United States to vote in 
the several States.”

Subdivision 12 deals with suits concerning civil rights 
and gives the District Courts jurisdiction “of all suits 
authorized by law to be brought by any person for the 
recovery of damages on account of any injury to his per­
son or property or of the deprivation of any right or privi­
lege of a citizen of the United States by any act done in 
furtherance of any conspiracy mentioned in Section 47 of 
Title 8.”

Subdivision 14 gives the Federal Courts jurisdiction 
“of all suits at law or in equity authorized by law to be 
brought by any person to redress deprivation under color 
of any law, statute, ordinance, regulation, custom or usage 
of any State or any right, privilege or immunity secured 
by the Constitution of the United States or of any right 
secured by any law of the United States providing for

* See opinion of Mr. Justice Holmes at page 540.



10

equal rights of citizens of the United States or of all per­
sons within the jurisdiction of the United States.”

This is a suit at law to redress the deprivation of peti­
tioner’s right to vote at a primary election in the State of 
Texas. The deprivation was under color of a statute of 
the State of Texas, to wit, Chapter 67 of the Laws of 1927, 
and/or under color of a resolution adopted by the State 
Democratic Executive Committee of Texas. The suit is 
not only, however, to redress the deprivation of civil rights 
by reason of the unconstitutional restraint upon the peti­
tioner’s right of suffrage in violation of the Fourteenth 
and Fifteenth Amendments, but it is also based specifically 
upon the violation of a Federal statute, viz., Section 31, 
Title 8 of the United States Code, which provides:

“ Section 31. Race, color, or previous condition 
rot 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, Territory, 
district, county, city, parish, township, school dis­
trict, municipality, or other territorial subdivision, 
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 fran­
chise guaranteed by Section 31, supra.

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

The authorities already cited demonstrate that in sim­
ilar instances this Court has assumed jurisdiction.

In the recent case of Love v. Griffith, 266 U. S. 32, the 
plaintiffs as qualified electors sought to enjoin as violative 
of the Constitution the enforcement of a rule made by the



11

Democratic City Executive Committee of Houston, Texas, 
that Negroes should not be allowed to vote at a particular 
Democratic primary election. The injunction was denied 
and the plaintiffs appealed to the Court of Civil Appeals 
of Texas, 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. The suit was brought to this 
Court on writ of error and was dismissed, Mr. Justice 
Holmes saying at 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 praj^ed.” (Black type ours.)

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

The Circuit Court of Appeals accepted jurisdiction of 
this cause and decided the motion to dismiss upon the 
merits without questioning the jurisdiction of the Federal 
Court (R, 28-30).

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 (R, 27).

* Robinson v. Holman, 181 Ark. 438, appeal dismissed and certiorari 
denied 283 U. S. 805, apparently on same grounds as Love v. Griffith.



12

This distinction between jurisdiction and merits has 
been clearly set forth by this Court in Binderup v. Pathe 
Exchange, 263 U. S. 291, at page 305,* and General Invest­
ment Co. v. N. Y. Central R. R., 271 U. S. 228, at page 230.f

As will be seen after the case of Nixon v. Herndon, 
supra, has been analyzed the sole difference between that 
case and this one is that there the respondents denied the 
petitioner the right to vote at a Democratic primary be­
cause the statute specifically forbade colored people to 
vote in Democratic primaries, whereas in this case the 
same petitioner was refused the right to vote at a Demo­
cratic primary by the election officials on the ground that 
a resolution of the States Democratic Executive Commit­
tee, adopted pursuant to authority granted by the Legis­
lature, prohibited Negroes from voting at Democratic 
primaries.

The only issue in this case is, then, the question of 
whether the acts of the respondents was State action. If 
it was State action, then Nixon v. Herndon is applicable.
This is clearly a question over which this Court has juris­
diction. It presents a justiciable issue irrespective of the 
merits of the contention. As the full nature of this issue 
is demonstrated by the succeeding Points, for the sake of 
brevity it will not be repeated here.

* j n the Binderup case, Mr. Justice Sutherland said:
“Jurisdiction is the power to decide a justiciable controversy, 

and includes questions of law as well as of fact. A  complaint 
setting forth a substantial claim under a federal statute presents 
a case within the jurisdiction o f the court as a federal court; 
and this jurisdiction cannot be made to stand or fall upon the way 
the court may chance to decide an issue as to the legal sufficiency 
of the facts alleged any more than upon the way it may decide 
as to the legal sufficiency of the facts proven. Its decision either 
way upon either question is predicated upon the existence of juris­
diction, not upon the absence o f it.”

J in  the General Investment Company case, Mr. Justice Van Devanter

“ By jurisdiction we mean power to entertain the suit, consider 
the merits and render a binding decision thereon; and by merits 
we mean the various elements which enter into or qualify the 
plaintiffs right to the relief sought. There may be jurisdiction 
and yet an absence o f merits ( The Fair v. Kohler Die Co., 228 
U. S. 22, 25; Geneva Furniture Co. v. Karpen, 238 U. S. 254, 258),’* 
* * *



13
We respectfully refer the Court to the ensuing argu­

ment, not only as a demonstration of the merits of the 
petitioner’s case, but also in support of the jurisdiction of 
this Court.

Summary of Petitioner’s Argument.*
I. The interest protected in Nixon v. Herndon was the 

right to vote in a primary and is the same interest invaded 
here, and the classification rejected by that case was based 
on race and color and is the same classification applied 
here. There was no question in Nixon v. Herndon of State 
action, that being implicit in the statute. That is the 
only open question in this case under the Fourteenth 
Amendment which was not disposed of in the former case.

II. The petitioner by being denied the right to vote at 
the primary election because of his color was denied the 
equal protection of the laws by the State of Texas in 
violation of the Fourteenth Amendment. The respond­
ents’ action was action of the State of Texas, because—

A. The power of the respondents to deny the peti­
tioner’s right to vote at the primary election was 
derived from the resolution of the Democratic State 
Executive Committee, which was adopted pursuant to 
the authority granted to it by Chapter 67 of the Laws 
of 1927. The respondents’ power was consequently 
derived from the State and was not inherent in the 
party.

B. Even if the Democratic State Executive Com­
mittee in adopting the resolution restricting voting 
at Democratic primaries to white persons exceeded 
the powers delegated to it by the Legislature in Chap-

* Even if the arguments made herein were all invalid, nevertheless the petition alleges a_ cause of action which the State Court could not have failed to entertain without itself violating the Fourteenth Amendment, 
an wllich Ue United States District Court had jurisdiction, in view of the substantial Federal questions raised and argued herein. Having full confidence in the arguments here presented, we do not wish unduly to extend this brief and shall omit elaboration of this further argument unless the Court requests otherwise.



ter 67 of the Laws of 1927, its action, though ultra 
vires, was nevertheless State action.

C. The Democratic State Executive Committee, 
acting in relation to primary elections, was part of 
the governmental machinery of the State. In adopt­
ing the resolution in question the action of the Com­
mittee was State action and the resolution could not 
therefore justify the denial of the petitioner’s right 
to vote.

D. Irrespective of Chapter 67 of the Laws of 1927 
of Texas and the resolution of the Democratic State 
Executive Committee the respondents, acting as 
judges of election, when they denied the petitioner 
the right to vote were applying to a public purpose 
powers with which the State had vested them, and 
consequently their action was State action as defined 
in Home Tel. <& Tel. Co. v. Los Angeles, 227 U. S. 278, 
and Tick Wo v. Hopkins, 118 U. S. 856.

III. The respondents’ denial of the petitioner’s right to 
vote in the Democratic primary was in violation of the 
Fifteenth Amendment.

(A ) The same arguments with respect to State 
action under the Fourteenth Amendment are appli­
cable under the Fifteenth Amendment.

(B) The petitioner was both denied the right to 
vote and his right to vote was abridged within the 
meaning of the Fifteenth Amendment.

(C ) The right to vote guaranteed by the Fifteenth 
Amendment is not the same thing as an election re­
ferred to in Article I, Section 4, of the Constitution 
and Newberry v. United States, 256 U. S. 232, is inap­
plicable.

(D ) Section 31, Title 8, of the United States Code 
prohibits discrimination by denying the right to vote 
by reason of color and was violated by the action of 
the respondents.



15

I.

The interest protected in N ixon  v. H erndon  was 
the right to vote in a primary and is the same interest 
invaded here, and the classification rejected by that 
case was based on race and color and is the same 
classification applied here. The only question before 
this Court is whether the invasion of this interest and 
this classification were the result of State action.

As the case at bar is really a sequel to Nixon v. Herndon, 
273 U. S. 536, and in all respects except one identical with 
that case, the determination of this question will be facili­
tated by a preliminary consideration of Nixon v. Herndon 
itself and a precise delimitation of the respects in which 
it is controlling here.

There Nixon, the same petitioner, brought his suit in 
the United States District Court for the Western District 
of Texas to recover the sum of $5,000 in damages from the 
judges of election, who, like the present respondents, had 
refused to permit him to vote in a Democratic primary in 
the State of Texas. The primary then, as in this case, was 
held at El Paso for the nomination of candidates on the 
Democratic ticket for United States Senator, for Repre­
sentative to Congress and for State and local offices. Then, 
as in this case, the judges of election refused to permit 
the petitioner to vote in the Democratic party primary 
solely because he was a Negro.

In that case it was sought to justify this discriminatory 
classification based upon the petitioner’s color by a Texas 
statute enacted in May, 1923, designated Article 3093-a 
(the former Art. 3107, Texas Rev. Civ. Stat.), which pro­
vided that “ in no event shall a negro be eligible to partici­
pate in a Democratic party primary election held in the 
State of Texas,” etc.



1G

Following the decision in Nixon v. Herndon that statute 
was repealed and the new statute adopted.

Now the judges of election have sought to justify their 
discrimination against the petitioner, based as it is on 
his color, because of a resolution of the State Democratic 
Executive Committee quoted supra, page 3, which wTas 
adopted pursuant to Chapter 67 of the Laws of 1927 and 
which restricts voting in Democratic primary elections to 
“ white Democrats.”

The statute of 1927 did not expressly render Negroes 
ineligible to vote at Democratic primaries, but empowered 
the State Executive Committees of such political parties 
as held primary elections to determine who should be 
qualified to vote at such primaries.*

In both cases petitioner contended that the deprivation 
of his right to vote was in violation of the Fourteenth and 
Fi fteenth Amendments.

In that case, as in this case, the defendant judges of 
election moved to dismiss the petition on the ground that 
the subject-matter of the action was political, that it was 
not within the jurisdiction of the court, that neither the 
Fourteenth nor the Fifteenth Amendment nor any laws 
adopted pursuant thereto applied to primary elections, and 
that the petition failed to state a cause of action.

In Nixon v. Herndon this Court held:
(1) that, it was unnecessary to determine whether 

the petitioner was deprived of his right to vote within 
the meaning of the Fifteenth Amendment, because he 
had been deprived of civil rights under the Fourteenth 
Amendment ;f

* The Democratic Party being the only party polling oyer 100,000 votes 
in Texas was the only party required by law to hold primary elections.

f  “The important question is whether the statute can be sustained. But 
although we state it as a question, the answer does not seem to be open to 
a doubt. We find it unnecessary to consider the Fifteenth Amendment, 
because it seems to us hard to imagine a more direct and obvious infringe­
ment o f the Fourteenth. That amendment, while it applies to all, was 
passed, as we know, with a special intent to protect the blacks from dis­
crimination against them” (pp. 540-541).



17
(2) that this deprivation of civil rights was accom­

plished by an arbitrary classification, viz.: one with­
out constitutional justification;*

(3) that this classification was the result of State 
action;! and

(4) that consequently the Fourteenth Amendment 
was applicable and a common law right of action for 
damages lay against the offending judges of election.^

The sole question before this Court is whether the action 
of the respondents as judges of election in denying the 
petitioner the right to vote was taken under State author­
ity or was in effect action by the State itself. If this be so 
the present case will then come within the category of 
Nixon v. Herndon and the action of the respondents would 
be without constitutional justification. In that event the 
judgment appealed from must be reversed.

* “The statute of Texas, in the teeth of the prohibitions referred to, assumes to forbid negroes to take part in a primary election the impor­
tance of which we have indicated, discriminating against them by the distinction of color alone” (p. 541).
f “States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case” (p. 541).
t “Of course the petition concerns political action but it alleges and seeks to recover for private damage. That private damage may be caused 

by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years, since Ashby v. White, 2 Ld. Raym. 938, 3 id. 320, and has since been recognized by this Court. Wiley 
v. Sinkler, 179 U. S. 58, 64, 65. Giles v. Harris, 189 U. S. 475, 485. See also Judicial Code, Sec. 24 (11), (12), (14). Act of March 3, 1911, c. 
231; 36 Stat. 1087, 1092. If the defendants’ conduct was a wrong to the plaintiff, the same reasons that allow a recovery for denying the plaintiff 
a vote at a final election allow it fo r  denying a vote at the primary election 
that may determine the final result” (p. 540, italics ours).



18
II.

The petitioner in being deprived of the right to 
vote at a primary because of his color was denied the 
equal protection of the laws by the State of Texas in 
violation of the Fourteenth Amendment.

A. The power of respondents to deny peti­
tioner’s right to vote at the primary election was 
derived from the resolution of the State Demo­
cratic Executive Committee adopted pursuant to 
authority granted by Chapter 67 of the Laws 
of 1927. Both the statute and the resolution 
adopted thereunder violated the Fourteenth 
Amendment because they authorized and worked 
a classification based on color.

The language of the new Article 3107 as enacted by 
Chapter 67 of the Laws of 1927 is broad enough to be an 
authorization from the Texas Legislature empowering the 
State Executive Committee of the Democratic Party to 
determine, among other things, that only white Democrats 
shall be qualified to vote at Democratic primary elections.*

If the Democratic Legislature of Texas could not con­
stitutionally forbid Negroes to vote at primaries in view 
of the decision of this Court in Nixon v. Herndon, it could 
nevertheless with a feeling of assurance entrust to the 
Democratic State Committee power to enact such prohibi­
tion and achieve the same end.f

Legislative Intention.

That it was the legislative intention to accomplish this 
purpose and to evade and nullify that decision appears 
from the face of the enactment. The statute expressly 
indicates that the new Article 3107 was being substituted

* See Chapter 67 o f Laws o f 1927, set forth in full at page 3, supra.
f This Court has held that a legislative body cannot accomplish by indirection something which it is without power to do directly. Cf. Ham­

mer v. Dagenhart, 247 U. S. 251, and Child Labor Tax Case, 259 U. S. 20. And see Bailey v. Alabama, 219 U. S. 219.



19

for the one held unconstitutional, in order to take care of 
the “emergency” created by the decision in Nixon v. Hern­
don. What could this emergency be if not that Negroes 
would be able to vote at the next primary election unless 
some new method were devised to exclude them? If the 
Legislature had intended to meet the emergency in such 
a manner as to conform to, rather than circumvent the 
decision of this Court which created the so-called emer­
gency, it is unthinkable that the Legislature would not 
expressly have stated in the new provision that the wide 
language conferring authority on the Executive Committee 
to determine who should vote at primary elections was 
not to be construed to authorize the exclusion of Negroes 
because of their race and color. The Legislature was ac­
tively aware of the necessity of limiting the authority of 
the State Committee, for it did actually impose limitations 
by the proviso which forbade the denial of the right to 
vote at primary elections “because of former political 
views or affiliations or because of membership or non­
membership in organizations other than the political 
party.” It would have been a simple matter to add the 
words “or because of race or color.” The failure of the 
Legislature to do so in the light of the declared emergency 
created by the invalidation of the former Article 3107 
enacted in May, 1923, completely disposes of any and all 
doubt as to the proper construction of the new statute of 
1927. By providing that the Executive Committee “ shall 
in its own way determine who shall be qualified to vote,” 
Chapter 67 of the Laws of 1927 plainly delegated author­
ity to the committee to determine among other things that 
only white Democrats should be entitled to vbte at Demo­
cratic primary elections.*

* Senator Thomas P. Love, a member of the Texas Senate when Arti­
cle 3107 was adopted in 1927, filed in his own behalf a brief in the Texas 
Supreme Court in Love v. Wilcox, 28 S. W. (2d) 515, in which he was 
plaintiff. In that brief he said that the statute had “no other purpose 
whatsoever” than “to provide, if possible, other means by which Negroes 
coydd be barred from participation, both as candidates and voters, in the 
primary elections of the Democratic Party, which would stand the test 
of the courts.” And see House Journal of First Called Session of the 
fortieth Legislature of Texas, at pages 302 et seq., and arguments by 
Representatives Faulk and Stout discussing Article 3107, which was House 
Bill No. 57.



20

The Democratic State Executive Committee did “ in its 
own way determine who shall be qualified to vote” by 
providing that only “ white Democrats” who are qualified 
under the Constitution and laws of Texas and who sub­
scribe to Article 3110 of the Revised Civil Statutes, should 
have the right to vote in the primaries of July 28, 1928, 
and August 25, 1928 (see Resolution supra, p. 3).

It would seem to follow as a matter of course that the 
Democratic State Executive Committee was acting under 
and pursuant to the authority which the Legislature had 
conferred upon it.

The Legislature, then, having given to the Democratic 
State Executive Committee the authority to fill in the 
blank which it left in the statute as to the qualification 
of voters at primaries, made the Democratic State Execu­
tive Committee pro tanto its agency, and the old maxim 
qui facit per alium facit per se is applicable.

It follows that the resolution of the Executive Commit­
tee must be read as an integral part of the statute itself, 
and when superimposed upon Chapter 67 of the Laws of 
1927, this new section is identical with the old Article 3107 
which was considered and condemned in Nixon v. Herndon.

Although the new Article 3107 makes no discrimina­
tion against Negroes in so many words, this Court can­
not accept the statute at its face value, but must go fur­
ther and examine what has been accomplished behind and 
by means of its bland exterior by the Democratic State 
Executive Committee. In the words of Mr. Justice 
Matthews in Yick Wo v. Hopkins, 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 with an evil eye 
and an unequal hand, so as practically to make 
unjust and illegal discriminations between persons 
in similar circumstances, material to their rights, 
the denial of equal justice is still within the pro­
hibition of the Constitution. This principle of 
interpretation has been sanctioned by this court in 
Henderson v. May err of New York, 92 U. S. 259;



21

Ghy Lung v. Freeman, 92 IT. g. 275; Ex parte Vir­
ginia, 100 IT. S. 339; Neal v. Delaware, 103 U. S. 
370; and Soon Ding v. Crowley, 113 IT. S. 703.”

This Court has on other occasions rejected as uncon­
stitutional statutes which sought to re-establish the status 
quo of the days before the adoption of the Fifteenth 
Amendment by excluding Xegro voters from the polls 
through the medium of “grandfather clauses.”

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

The “ Inherent Power” Argument.

It is urged by the respondents and by the courts below 
(E. 25, 30) that regardless of the statute there is inherent 
power in the political party to prescribe the qualifications 
of its own members and those entitled to vote at party 
primary elections. It has been shown above that the 
Democratic gtate Executive Committee intended to act 
under the new Article 3107; but even if the Committee did 
not intend to act under the statute it could not avoid 
doing so. For assuming that such inherent power existed 
before the Legislature of Texas manifested its intention 
to take over the field of primary elections by enacting 
legislation touching on every phase of the primary, 
including the qualifications of voters, this power no 
longer exists over the qualifications of voters at party 
primaries.* It is sufficient that the Legislature has spoken 
on this subject. It has invaded the field of the primary 
and it must therefore be deemed to have assumed full con­
trol of the situation.

The State being the supreme sovereignty, it must be 
deemed to have superseded whatever sovereign powers

* 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 com­position of the electorate at such primaries. These are matters that need not now be questioned or decided.



22

political parties may previously have had with respect to 
the control of primaries and party membership. Fruitful
analogy and ample support and authority are supplied by 
the cases which have dealt with the relation of Congress 
and the State Legislatures in connection with the Com­
merce Clause and the State police powers.*

That the State has expressed itself in regard to pri­
maries is evidenced by old Article 3107, considered in 
Nixon v. Herndon, in which the Legislature specifically 
provided the qualifications of voters at primary elections. 
It also provided by Article 3110 of the Revised Civil 
Statutes of 1925 a statutory pledge for voters.f

It is clear from the face of Chapter 67 of the Laws of 
1927 that the Legislature did not relinquish its sovereignty 
when it delegated its power to determine the qualifications 
of voters at primaries to the party executive committees, 
because (1) the new statute did not purport to withdraw 
legislative sovereignty but merely to substitute a new pro­
vision in place of the one declared unconstitutional, the 
statute, to quote its own terms, being “ to repeal Article 
3107 of Chapter 13 of the Revised Civil Statutes of Texas, 
and substituting in its place a new article * * and
(2) the statute contains explicit limitations on the power 
of the party executive committees forbidding them to deny 
the right to participate in a primary “because of former 
political views or affiliations or because of membership or 
nonmembership in organizations other than the political 
party.”

There is ample authority in the decisions of the Texas 
courts to demonstrate that the Democratic Party in Texas 
and its Executive Committee had ceased to have any in-

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

t“Art. 3110. Test on ballot. No official ballot for primary election shall have on it any symbol or device or any printed matter, except auniform primary test, reading as follows: ‘I am a.......  (inserting
name of political party or organization of which the voter is a member) 
and pledge myself to support the nominee of this primary’ ; and any 
ballot which shall not contain such printed test above the names of the 
candidates thereon, shall be void and shall not be counted.”

See also Article 2055, qualifications for voters which are applicable to 
primary elections. Texas Election Law pamphlet, p. 26.



herent power to prescribe qualifications of voters at Demo­
cratic primary elections long before the resolution here in 
question was adopted.*

In Briscoe v. Boyle, 286 Si. W. 275 (Tex. Civ. App., 
1926), this very question was squarely presented and the 
Court held that all inherent power in the premises ceased 
to exist when the Legislature entered the field of primary 
election regulation and enacted legislation concerning the 
qualifications of voters at such elections.f In that case 
a county Democratic executive committee adopted a reso­
lution excluding from primary elections all who had voted 
against any Democratic gubernatorial nominee in the pre­
vious election. Fourteen such persons brought suit against 
the judges of election to enjoin them from enforcing the 
resolution. The injunction was denied in the lower court 
but on appeal it was granted. The Texas Court of Civil 
Appeals considered at length the legislative situation with 
respect to primary elections and held that since the State 
of Texas had legislated in detail concerning the qualifica­
tions of voters at such elections, the political parties them­
selves no longer had any power to prescribe qualifications 
not made under authority of the statute. The Court said 
at page 276:

“ Before the legislative department invaded the 
province of party government, and assumed control 
and regulation of party machinery, the right to say 
who should and who should not participate in party 
affairs was exercised by the party governments, 
with which the courts would not concern them­
selves.

But the Legislature has taken possession and con­
trol of the machinery of the political parties of the 
State, and, while it permits the parties to operate 
that machinery, they do so only in somewhat strict 
accordance with the rules and regulations laid down 
in minute and cumbersome detail by the legislative 
body. The statute designates the official positions 
to be occupied in the parties, and, while it permits 

_____ the members of the parties to select such officials,
* And see 43 Harv. Law Rev. 467, 471; 39 Yale Law Journ. 423, 424.
T That case involved the old Article 3107 prior to its consideration by 

this Court in Nixon v. Herndon.



2 4

they can do so only in the manner prescribed by the 
statutes, which define the powers and duties of 
those officials, beyond which they cannot lawfully 
act. The statute prescribes the time, place, and 
manner of holding primary elections. It prescribes 
the forms of the ballots to be used, and the process 
by which the election officials shall identify and 
hand out the ballots and by which the voters shall 
mark and deposit the ballots when voted. It pre­
scribes the declaration to be made by the voter, and 
the obligation to be assumed by him as a condition 
precedent to the validity of his ballot. In fine, the 
Legislature has in minute detail laid out the process 
by which political parties shall operate the statute- 
made machinery for making party nominations, and 
has so hedged this machinery with statutory regu­
lations and restrictions as to deprive the parties and 
their managers of all discretion in the manipulation 
of that machinery. * * *

By excluding negroes from participating in party 
primary elections, and by legislating upon the sub­
ject of the character and degree of party fealty re­
quired 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 the 
party primaries.” (Black type and italics ours.)*

The argument of “ inherent power” has been disposed 
of by the Texas Courts in Love v. Wilcox, 119 Tex. 256, 28 
S. W. (2d) 515 (Texas, 1930), which involved the very 
statute under consideration in this case. There the plaintiff 
sought a mandamus to compel the Democratic State and 
County Executive Committees to place liis name on a guber­
natorial ballot of the Democratic primary and to desist 
from enforcing a resolution passed in February, 1930, 
by the Democratic State Executive Committee, which 
precluded anyone from becoming a candidate at the Demo­
cratic primaries if he had voted against the party in the

* The force of that decision was in no way diminished when this Court invalidated the particular provision which excluded Negroes from 
participating in primary elections. That was only one of many pro­visions regulating such elections and is clearly treated as such in Briscoe 
v. Boyle. The principle of the supreme sovereignty of the State over primaries, as against that of the political parties, remains unimpaired.



25
1928 elections after having participated in the Democratic 
primary of that year. The Executive Committee sought 
to justify its action on the basis of its inherent power to 
manage the affairs of the party and to determine who could 
present his name for nomination at a primary. The Su­
preme Court of Texas issued the mandamus, holding that 
the Executive Committee had no inherent power to exceed 
any of the limitations for which the Legislature had pro­
vided in Article 3107. The Court ho doubt had in mind 
the possibility that its decision might be used as a basis 
for attacking the Executive Committee resolution barring 
Negroes from primary elections, and expressly stated that 
it was not passing on that question. The Court guardedly 
referred to Article 3107 as a “ recognition” by the Legisla­
ture of the right of the Democratic Party to create an 
Executive Committee and to confer on it various discre­
tionary powers concerning the regulation of primary elec­
tions. The Court pointed out, however, that the Legis­
lature had limited the scope of this “ recognition” by the 
proviso at the end of Article 3107 and construed this 
proviso to apply to the exclusion of candidates for nomina­
tion because of any form of past disloyalty to the party. 
Here again inherent power is shown to have dissolved 
upon the application of State sovereignty.*

The improper application of this power by the Legis­
lature did not take it from the field of sovereignty and 
restore the inherent power of the party Executive Com­
mittee. If this had been so there would have been no such 
“ emergency and an imperative public necessity” referred 
to in Chapter 67 of the Laws of 1927. Only the lack of 
inherent power to exclude Negroes could have created this 
emergency, just as only the legislative intention to confer 
a statutory power could have led the Legislature to meet 
the emergency in the way it did.

Furthermore, the enactment of Chapter 67 of the Laws 
of 1927 would automatically deprive the Democratic Ex-

* The Briscoe case was cited as authoritative by the Supreme Court in the Love case.



2G

ecutive Committee of any inherent power to bar Negroes 
from its primary elections if such inherent power had not 
already been terminated by virtue of the prior enactment. 
This is true whether, as we contend, the statute is a direct 
delegation of authority to prescribe qualifications discrim­
inating against Negroes or whether it be a mere general 
authority to prescribe the qualifications of voters at pri­
mary elections delegated by the Legislature.

Under Briscoe V. Boyle and Love v. Wilcox, supra, it 
would have been impossible for the inherent power to 
survive the creation of the statutory power. The two 
powers could not exist side by side, and as between them 
the one conferred by statute must prevail.

“Recognition” of Power Argument.

This would be equally true if Article 3107 is regarded 
as a “ recognition” by the Legislature of the existence of 
power on the part of the Democratic Party to prescribe 
through its Executive Committee that only white Demo­
crats shall vote at its primary elections. It could not 
reasonably be construed as a recognition of inherent power 
because, as we have shown, it was a very plain recognition 
to the contrary. But even if it had purported to be such 
a recognition, it would have been a recognition of a non­
existing fact, it being clear that no inherent power could 
have existed after the State sovereignty had taken over 
the field. If such a recognition could have any effect at 
all, it would have to he as a recognition that the power 
once had existed and as a declaration of a legislative in­
tention that it should once again come into existence. 
Whether this be regarded as the creation of a new power 
or the recognition and restoration of an old one, the exist­
ence of the power itself would be necessarily and wholly 
dependent upon the force of the statute and hence would 
be a statutory power, not an inherent one.

Moreover, there is no reason why a legislative “ recogni­
tion” even of an existing inherent power should not turn



27
the inherent power into a statutory one. That is precisely 
what was held in Briscoe v. Boyle, where the various statu­
tory provisions as to how primary elections should be 
conducted admittedly conferred powers on the Democratic 
Party and its Executive Committee, which up to the time 
of the legislative action the party and the committee had 
enjoyed under their general inherent power to manage 
their own affairs. There is no material difference in form 
or substance between these statutory provisions (all but 
one of which are still in force to-day) and the new Article 
3107. If the latter can be regarded as a “ recognition” of 
inherent power, then all the provisions must be regarded 
as such; and this very recognition by the Legislature of 
powers, whose existence and exercise had been a purely 
private internal affair of the Democratic Party, would 
itself supply the only expression of legislative intention 
which is needed under the decisions in Brisco v. Boyle 
to turn the private affair into a State affair and to trans­
form the inherent power into a statutory power.

Other Texas authorities are to the same effect.*
The Texas cases, with one exception, all confirm our 

contention that the party executive committees are 
agencies of the State, subject to legislative control and 
endowed with powers by the Legislature. The exception 
to this rule is White v. Lubbock (Tex. Civ. App., 1930), 
30 S. W. (2d) 72, which involved the right of a Negro 
to vote in a primary, and where the Court held that the 
party had inherent power to exclude Negroes. This would 
indicate that only where a Negro is concerned do the usual 
rules of construction and the common principles of sub­
stantive law fall down. But even were the bulk of the 
Texas cases not in accord with the view here urged, it 
would be of no importance, because it was recognized 
by this Court in the Home Telephone & Telegraph case 
that the local conception of State action may differ from 
the national conception of State action. In that case it

* Clancy v. Clough, 30 S. W. (2d) 569, which held that membership 
on a City Democratic Executive Committee was itself subject to statutor 
qualifications which could not be added to by the Committee; Love 
Taylor, 8 S. W. (2d) 795; Friberg V. Scurry, 33 S. W. (2d) 762.



28
wtts urged that because the municipal body which had 
fixed the telephone rates had exceeded its authority no 
State action was involved. This Court refused to accept 
that view, holding, on the contrary, that the action was 
State action, the rates confiscatory and that the Fourteenth 
Amendment applied “to every person whether natural or 
juridical who is the repository of State power.” The em­
phasis, therefore, was not upon whether power was prop­
erly applied, but upon whether State power in fact existed. 
So here the holding of the State Court that political par­
ties have inherent power to exclude Negroes from primary 
elections, and in so acting were not exercising state powers, 
is not binding upon this Court.

In conclusion, we submit that the Executive Committee 
had no inherent power to adopt the resolution which pro­
vided that only white Democrats could vote in the primary 
election. The only power which the committee could have 
had, it received from the Legislature of the State. The 
Legislature by the new Article 3107 intended the commit­
tee to adopt such a resolution as was adopted and the 
committee acted with this specific statute in mind. Under 
the Texas authorities, no other action by the committee 
would have been possible. The action of the committee, 
therefore, and the action of the Legislature are equally 
in violation of the Fourteenth Amendment.

B. Even if the Democratic State Executive 
Committee in adopting the resolution restricting 
voting at Democratic primaries to “white” Demo­
crats exceeded the powers delegated to it by the 
Legislature in Chapter 67, Laws of 1927, its 
action, though ultra vires, constituted State 
action in violation of the Fourteenth Amend­
ment because it authorized and worked a classi­
fication based on color.

Under the decisions of this Court in Home Tel. £ Tel. 
Go. v. Los Angeles, 227 U. S. 278, and the cases consistently 
in accord therewith (Raymond v. Chicago Traction Co., 
207 U. S. 20; Fidelity £ Deposit Co. v. Tafoya, 270 U. S.



2 !)

426; cf. Yick Wo v. Hopkins, 118 U. S. 356), it has become 
definitely established that the limitations which the Four­
teenth and Fifteenth Amendments impose upon State ac­
tion apply not merely to the enactment of legislation by 
State Legislatures but also, among other things, to action 
taken pursuant to such statutes by those selected to act 
thereunder. We may have a statute which is itself subject 
to no constitutional objection, and which authorizes alto­
gether proper action to be taken by designated persons on 
behalf of the State. Yet, if these persons disobey the 
statute and take action thereunder which, if taken by the 
State, would be violative of the Fourteenth or Fifteenth 
Amendment, their action is State action, permitting those 
injured thereby to seek redress therefor by suit or action 
in a Federal court. As this Court has said in Home Tel. 
tC Tel. Go. v. Los Angeles, supra (pp. 286-287) :

“the provisions of the (Fourteenth) 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 * * * 
where an officer or other representative of the state 
in the exercise of the authority with which he is 
clothed misuses the power possessed to do a wrong 
forbidden by the Amendment, inquiry concerning 
whether the state has authorized the wrong is 
irrelevant and the Federal judicial power is com­
petent to afford redress for the wrong by dealing 
with the officer and the result of his exertion of 
power.” (Black type ours.)

In view of the considerations advanced under Toint II, 
subdivision A, supra, it is clear, we submit, that the Demo­
cratic State Executive Committee falls precisely within 
the foregoing decision so far as concerns its action in 
adopting the resolution limiting voting at the primary 
election of July 28, 1928, to white Democrats. If its action 
in adopting the resolution was not authorized by Article



3107, it necessarily was an abuse of the power to deter­
mine the qualifications; of voters at primary elections which 
the committee possessed under that statute. It nevertheless 
was action to which the reach of the Fourteenth Amend­
ment extended, and being action which denied to Negroes 
the equal protection of the laws, it was action which was 
forbidden by that Amendment and which therefore was 
void, because in the Home Telephone & Telegraph case this 
Court recognized that although within the boundaries of 
the State the action of a State agency might be ultra vires, 
it might nevertheless, in this forum, be deemed State action 
violative of the Fourteenth Amendment.

Nor, if it be assumed, as we have in this sub-point as­
sumed, that the Executive Committee was not authorized 
under the broad language of Article 3107 to determine 
among other things, that only white Democrats may vote 
at Democratic primary elections, can the Committee claim 
that any such classification could rest upon its inherent 
power. In making this assumption as to the scope of the 
generic language in the present Article 3107 we are read­
ing into it an implied limitation as to the scope of the 
grant which it intended to confer upon the Executive 
Committee. Certainly if an express limitation to this 
effect were included in the Article, the Executive Com­
mittee could hardly claim any inherent power to exceed it ; 
and there is no reason why an implied limitation should 
not have the same effect once that implication is made.

This is conclusively covered by Love v. Wilcox■, supra. 
In that case the Supreme Court of Texas had before it 
the limiting clause in the present Article 3107 which pre­
cluded the operation of the general grant in Article 3107 
as to the past loyalty of those who participated in the prior 
primaries of the Democratic Party. Nowithstanding this 
provision the Democratic State Executive Committee 
sought to keep Love from becoming a candidate in the 
Democratic primary because he had voted against the 
party in the 1928 elections after having participated in 
the party primary of that year. The Committee sought to 
justify its action on the basis of its inherent power to



31
manage the affairs of the party and to determine who 
could present his name for nomination at a primary.

The Supreme Court of Texas flatly held that the Execu­
tive Committee had no inherent power to exceed any of 
the limitations which the Legislature had provided for 
in Article 3107. If, therefore, we read a limitation into 
Article 3107 so that it is not regarded as covering such a 
classification as made in the resolution, it follows from 
Love v. Wilcox that the Executive Committee could under 
no circumstances by virtue of any power of its own exceed 
the limits which the Legislature had drawn. The Com­
mittee could make no more claim to inherent power to' 
exceed this limitation than to exceed the limitation with 
respect to past partly disloyalty so completely disposed 
of in Love V. Wilcox. It follows therefore that even if 
the present Article 3107 be assumed—contrary to the entire 
legislative history of the Article—not to have authorized 
the resolution, nevertheless the resolution could not be 
based upon any inherent power of the Executive Com­
mittee, but is referable only to the position in which the 
Executive Committee was put by whatever grant of power 
Article 3107 made to the Committee. This follows from 
the doctrine of ultra vires use embodied in the Home Tel. 
(£ Tel. Co. case. Under any construction therefore of 
Article 3107 the classification in the resolution must be 
deemed State action because the statute alone has made 
the resolution possible.

C. The Democratic State Executive Commit­
tee, acting in relation to primary elections, was 
part of the governmental machinery of the State.
The resolution of that Committee restricting vot­
ing in Democratic primaries to “white” Demo­
crats was State action and violated the Four­
teenth Amendment and afforded respondents no 
justification in denying to petitioner the right to 
vote.

In the preceding points we have shown that although 
the primary machinery was originally the private affair



32
of the party, it has become absorbed, by the State, which 
has exercised its sovereignty over primary elections with 
the “ rules and regulations laid down in minute and cum­
bersome detail” (Briscoe v. Boyle, quoted supra, at pages 
23-24).

Political parties now, in Texas at least, have become 
State agencies in their relations to elections and primaries.

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 con­
trary doctrine that the party is in reality a govern­
mental agency subject to legal regulations and con­
trol.”

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

Bliley v. West, 42 F. (2d) 101, arose out of a similar 
effort by the State of Virginia to disenfranchise Negroes 
in the primary elections. There the statute described 
voters 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 election who set up that resolution as a justification. 
Defendants demurred and the District Court overruled 
the demurrer in an opinion written by Judge Groner (33 
F. [2d] 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 affirmed the judg­
ment, adopting the opinion of Judge Groner as its own.

Judge Groner cited the case of Commonwealth v. Will-- 
oose, 111 Va. 849, at page 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



33
faithfully reflect and register the unbought will of the 
electors.”

The primary machinery is therefore no longer the 
peculiar province of the political party and the test of 
the superior sovereignty of the State over that of the 
party in relation to the function of the party in the pri­
mary machinery is to be found in such cases as Love v. 
Wilcox, supra, where the Supreme Court of Texas held 
that Chapter 67 of the Laws of 1927 prohibited the party 
executive committee from excluding a candidate from the 
party primaries because of past disloyalty to the party 
and could not be overridden by any action of the party 
executive committee, Briscoe v. Boyle, supra, which de­
cided that, under the old Article 3107 the party could 
not add to the qualifications fixed by the Legislature in 
determining qualifications for party members, and Clancy 
v. Clough (Tex.), 30 S. W. (2d) 569, where it was held 
that the executive committee of the City of Houston was 
without power to regulate the requisites for candidates 
for membership on the executive committee itself on the 
ground that Articles 3110 and 3111 of the Revised Civil 
Statutes completely covered the field of qualifications.

In other words, those eases hold that the party com­
mittees are so much controlled by State authority that 
they are without power to vary on their own initiative the 
qualifications prescribed for voters, candidates or commit­
tee members.

It must be clear, then, that whether or not the Legis­
lature intended by Chapter 67 of the Laws of 1927 to vest 
in the State Executive Committee the power to exclude 
Negroes from Democratic primaries, the Legislature 
adopted the executive committee as its agency in the 
administration of the primary laws.* *

* The very existence of such bodies as the County and State Execu- 
I'd6 ̂ omm t̂tefs depends upon the statutes. Articles 3100, 3118 and 3139* -̂ev. Civ. Stats. 1925) deal with who shall choose these bodiesand how that shall be done. And these bodies are created by the statute to perform the manifold duties which are minutely prescribed in nearly each one of the approximately 70 sections which comprise the primary law (Chap. 13, ibid.) of the State of Texas. Thus this Committee and tneir powers and duties are created as parts of the entire primary machinery. J



34
It follows as an elementary proposition that the State 

cannot perform by an agency an act which it could not 
accomplish in its own name, that it cannot give force 
of law to a prohibited enactment, from whatever source 
originating.

Williams v. Bruffy, 96 U. S. 176.
Ford v. Fur get, 97 U. S. 594.
King Mfg. Co. v. Augusta, 277 IT. S. 100, 107-114.
Home Tel. & Tel. Co. v. Los Angeles, 227 U. 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 legis­
lature, or an act of any subordinate instrumentality 
of the State exercising delegated legislative author­
ity, like an ordinance of a municipality or an order 
of a commission.”

The resolution which was adopted by the Democratic 
State Executive Committee restricting the primaries to 
white Democrats, is therefore within the same prohibition 
of the Fourteenth Amendment as would have been a direct 
legislative enactment to this effect.

Nor does such a case as Waples v. Marrast, 108 Tex. 
5, 184 S. W. 180, holding that a political party is not 
an agency of the government of Texas and hence it 
was unconstitutional for the Legislature to attempt to 
provide for the expense of a primary election out of the 
State treasury, detract from the conclusion just stated. 
Political parties and primary elections may be deemed 
cogs in the State election machinery for some purposes 
and not for other purposes.*

* Compare Briscoe v. Boyle, supra, and State ex rel. Moore v. Meharg (Tex. Civ. App., 1926), 287 S. W. 670, with the Waples and White cases, 
supra.



Moreover, it was recognized in the Home Telephone & 
Telegraph case that the local conception of State action 
may differ from the national conception of State action.

D. Respondents by reason of their office as 
judges of election derived their power to deny 
the petitioner the right to vote at the primary 
election from the statutes of the State. In 
applying that power to a State purpose in such 
a way as to work a color classification they 
violated the Fourteenth Amendment irrespec­
tive of Chapter 67 of the Laws of 1927 and the 
resolution of the Democratic State Executive 
Committee.

The opinion of the District Court states that (R. 25) :
“The Court also holds that the members of a vol­

untary association, such as a political organization, 
members of the Democratic party in Texas, possess 
inherent power to prescribe qualifications regulat­
ing membership of such organization, or political 
party. That this is, and was, true without reference 
to the passage by the Legislature of the State of 
Texas of said Art. 3107, and is not affected by the 
passage of said act, and such inherent power re­
mains and exists just as if said act had never been 
passed.”

That this holding is diametrically opposed to the deci­
sions of the Texas courts in Briscoe v. Boyle, supra, and 
in Lore v. Wilcox, supra, has already been demonstrated 
(see pp. 23-26, supra). But assuming, for the sake of 
argument, that the holding were correct, and assuming 
even that the action of the State Executive Committee 
was not State action within the meaning and application 
of the Fourteenth Amendment, it still would not follow 
that the action of the defendants complained of in the case 
at bar also was not State action in violation of that



36

Amendment. This litigation is not brought against the 
members of the Executive Committee because of their ac­
tion in adopting the resolution barring Negroes from the 
primary election of July 28, 1928. It is brought against 
the judges of election, who— whether they be deemed State 
officials, party officials or the representatives of the con­
tending 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.

The Texas Legislature has with meticulous care pro­
vided for the time, place and manner of holding primary 
elections and of determining and contesting the results.

Primary elections are themselves compulsory, under the 
Texas statutes, 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 
always has applied and now does apply only to the Demo­
cratic 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 prescribed by statutory provisions (1925 Tex. 
Rev. Civ. Stats., Elections, Arts. 3102-3105, 3108, 3109- 
3114, 3116-3117, 3120, 3122-3127, 3146-3153).

Authority Vested in Judges of Election.

Among these provisions are the ones which provide for 
the appointment of judges of election (Art. 3104) and 
prescribe their functions, powers and duties (Arts. 3105, 
3006-3007). These include, among others, the following 
(Art. 3105) :

“ Judges of primary elections have the authority, 
and it shall be their duty, to administer oaths, to



37

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 others, a power to administer such oaths 
for the purposes of ascertaining the qualifications of a 
challenged voter. It is for this purpose, indeed, that the 
power to administer oaths is conferred upon judges of 
election. Article 3006 provides:

“When a person offering to vote shall be objected 
to by an election judge or a supervisor or chal­
lenger, the presiding judge shall examine him upon 
an oath touching the points of such objection, and, 
if such person fails to establish his right to vote to 
the satisfaction of the majority of the judges, he 
shall not vote.”

The powers of judges of primary elections to preserve 
order, appoint special officers, enforce the observance of 
order and make arrests “as judges of general elections are 
authorized and required to do,” as provided in Article 
3105, refer to Article 3002, which for these purposes gives 
the presiding judge of elections “the power of the district 
judge to enforce order and keep the peace.” This is clearly 
a State judicial power.

Article 2954 specifies the persons who are not allowed 
to vote. These include infants, idiots, lunatics, paupers,



and the like. They do not include Negroes, as such. Arti­
cle 2955 then specifies the persons who are allowed to vote.*

In Title Six, Chapter Four, of the Texas Penal Code 
of 1925, relating to “ Offenses Affecting the Right of Suf­
frage,” f  it is provided in Article 217 as follows:

“ Refusing to permit voter to vote. Any judge of 
any election who shall refuse to receive the vote of 
any qualified elector who, when his vote is objected 
to, shows by his OAvn oath that he is entitled to vote, 
or who shall refuse to deliver an official ballot to 
one entitled to vote under the law, or who shall 
wilfully refuse to receive a ballot after one entitled 
to vote has legally folded and returned same, shall 
be fined not to exceed five hundred dollars.”

Article 231 makes Article 217 specifically applicable to 
primary elections.

* “Qualifications for voting.— Every person subject to none of the fore­
going disqualifications who shall have attained the age of twenty-one years and who shall be a citizen of the United States, and who shall have resided in this State one year next preceding an election, and the last six months within the district or county in which he or she offers to vote, shall be 
deemed a qualified elector. The electors living in an unorganized county may vote at an election precinct in the county to which such county is attached for judicial purposes; provided that any voter who is subject to pay a poll tax under the laws of this State or ordinances of any city or town in this State, shall have paid said tax before offering to vote at any 
election in this State and holds a receipt showing that said poll tax was paid before the first day of February next preceding such election; and, if said voter is exempt from paying a poll tax and resides in a city of 
ten thousand inhabitants or more, he or she must procure a certificate showing his or her exemptions, as required by this title. If such voter 
shall have lost or misplaced said tax receipt, he or she shall be entitled to vote upon making and leaving with the judge of the election an affidavit that such tax was paid by him or her, or by his wife or by her husband 
before said first day of February next preceding such election at which he or she offers to vote, and that said receipt has been lost or misplaced. In any election held only in a subdivision of a county for the purpose of determining any local question or proposition affecting only such subdivi­
sion of the county, then in addition to the foregoing qualifications, the voter must have resided in said county for six months next preceding such election. The provisions of this article as to casting ballots shall apply to all elections including general, special and primary elections.” (Italics ours.)

t  Article 218 provides for a fine against a judge of election who tries to influence a voter “where an election, either primary, special or general, 
is being held," and other penal provisions apply to improperly opening the ballot (Art. 221), divulging a vote (Art. 222), interfering with the ballot (Art. 226), making a false canvass (Art. 227), false certification by the 
chairman (Art. 228), giving false certificate of election (Art. 229), wil­fully failing or refusing to discharge his duty (Art. 230).



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 authority 
from the statutes of the State, and the Legislature has by 
its own edicts given to judges of primary elections the 
powers and duties of judges of general elections and sub­
jected them to the same penalties applicable to judges of 
general elections.

It requires no extended argument to demonstrate that 
the conduct of primary elections is, when authorized by 
statute, a State function, pointed to achieving a fair ex­
pression of popular, sovereign will, and that the judges of 
election acting in their capacities as judges of primary 
elections are fulfilling a State purpose.

Consequences of Abuse of Powers.

It seems apparent, from the foregoing resume of the 
Texas Election Laws, that the defendants, as judges of 
election were charged by the State of Texas with the func­
tion and duty of determining the plaintiff’s qualifications, 
under the Texas laws, to vote at the primary election in 
question in the case at bar. It is equally apparent that 
in passing on those qualifications and in determining that 
the plaintiff did not meet them because he was a Aegro, 
the defendants were improperly administering the powers 
and duties specifically conferred upon them, and upon 
them alone, by the State of Texas, for the purpose of en­
forcing, on behalf of that State, the laws which it had 
enacted with respect to the conduct of primary elections.

We submit, therefore, that the contention of the defend­
ants that the wrong which they did the plaintiff in de­
priving him of his right to vote at the primary election 
over which they officiated, was not a wrong forbidden by 
the Fourteenth or Fifteenth Amendments, because those 
Amendments apply only to State and not to individual 
action, is wholly without merit. We have here the plainest



10

possible instance of a case “where,” in the language of 
Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278, 287, 
“an officer or other representative of a state in the exercise 
of the authority with which he is clothed misuses the power 
possessed to do a wrong forbidden by the Amendment,” 
and, hence, where the misuse of this power itself supplies 
the requisite element of State action in the case at bar and 
eliminates the only possibility of differentiating it from 
Nixon v. Herndon.

It should be noted that the emphasis in the Home Tel. 
& Tel. Co. 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 further quotations from the opin­
ion of Mr. Chief Justice 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 repre­
sentative of a State in the exercise of the authority 
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 was more 
normally to he contemplated, that State powers might be



41

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 which could 
only be done upon the predicate that there was such 
power, the inquiry as to the repugnancy of the act 
to the Fourteenth Amendment cannot be avoided by 
insisting that there is a want of power. * * * To 
repeat, for the purpose of enforcing the rights guar­
anteed by the Amendment when it is alleged that 
a state officer in virtue of state power is doing an 
act which if permitted to be done prima 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 au­
thority”  (Italics ours.)

Applying that test to this case, it is clear that the 
respondents 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 Legis­
lature of the State.

In Yick Wo v. Hopkins, 118 U. S. 356, it was held that 
an ordinance violates the Fourteenth Amendment if it 
confers upon municipal authorities arbitrary power at 
their own will and without regard to discretion in the 
legal sense of the term to give or withhold consent as to 
persons or places for the carrying on of a business, and 
that an administration of such an ordinance violates the 
provisions of the Fourteenth Amendment if it makes arbi­
trary and unjust discriminations founded on differences 
of race between persons otherwise in similar circum­
stances. This Court pointed to “ the political franchise of 
voting” as one of the illustrations of the principle that a 
man should not be compelled to hold his life or means of



living or any material right essential to the enjoyment 
of life at the mere will of another. The Court said, at 
page 370:

“ Though not regarded strictly as a, natural right, 
but as a privilege merely conceded by society ac­
cording to its will, under certain conditions, never­
theless it is regarded as a fundamental political 
right, because preservative of all rights.”

Mr. Justice Matthews said, at page 373:

“ In the present cases we are not obliged to reason 
from the probable to the actual, and pass upon the 
validity of the ordinances complained of, as tried 
merely by the opportunities which their terms af­
ford, of unequal and unjust discrimination in their 
administration. For the cases present the ordi­
nances in actual operation, and the facts shown 
establish an administration directed so exclusively 
against a particular class of persons as to warrant 
and require the conclusion, that, whatever may have 
been the intent of the ordinances as adopted, they 
are applied by the public authorities charged with 
their administration, and thus representing the 
State itself, with a mind so unequal and oppressive 
as to amount to a practical denial by the State of 
the equal protection of the laws which is secured 
to the petitioners, as to all persons, by the broad 
and benign provisions of the Fourteenth Amendment 
to the Constitution of the United States. Though 
the law itself be fair on its face and impartial in 
appearance, yet, if it is applied and administered 
by public authority with an evil eye and an un­
equal hand, so as practically to make unjust and 
illegal discriminations between persons in similar 
circumstances, material to their rights, the denial 
of equal justice is still within the prohibition of the 
Constitution. This principle of interpretation has 
been sanctioned by this court in Henderson V. 
Mayor of New York, 92 U. S. 259; Ghy Lung v. 
Freeman, 92 U. S. 275; Ex parte Virginia, 100 XL S. 
339 ; Neal v. Delaware, 103 U. S. 370; and Soon 
Hing v. Crowley, 113 U. S. 703.” (Black type 
ours.)



43

Expenses of Primary Election.

It is suggested in tlie opinion of the District Court (R. 
24), and again in the opinion of the Circuit Court of 
Appeals (R. 30), that in view of the fact that the respond­
ents 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 officers of the State of Texas. The source of remunera­
tion is never determinative as to the status or official 
capacity of a person. .There is no end of cases sustaining 
this proposition.* 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. TIapgood, 11 Mass. 350.

Nor is it material that the County Executive Commit­
tee of the party appoints the judges of primary elections. 
These appointments are made solely by reason of express 
statutory authority (Art. 3104, Tex. Rev. Cov. Stats., 
1925), and membership on the County Executive Commit­
tee is itself subject to the sovereign will of the State as 
expressed in Article 3107. To this effect is Clancy v. 
Clough, supra.

If, therefore, these judges of election have abused their 
powers derived from the State and have used them “as the 
instrument of 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 
anyone acting under authority lodged in him by the State.

* Cases are collected in exhaustive note in 53 A. L. R. 595. See also 
72 U. of Pa. Law Rev., p. 222, Note 9; 15 Cornell Law Quar. 267.



u

To reduce the Democratic primary election to the status 
of a purely private election akin to the election of the 
officers of the Ivlu Klux Ivlan, or of any other private 
lodge, league or “ voluntary association,” it would be neces­
sary to view the situation not merely without reference to 
Article 3107 but also without reference to all of the other 
statutory provisions which have just been considered. This 
it is improper to do unless the Texas Legislature was 
without power to enact these provisions. Such a conten­
tion has not been made, and need not be considered, the 
existence of the requisite legislative power being too clear 
for argument.

It also hardly requires argument to establish that the 
defendants’ statutory duties as officers or representatives 
of the State of Texas could not possibly be justified or 
affected by the purely private action of a political party 
any more than by the action of any private lodge or volun­
tary association which might presume to interfere with 
the conduct of primary elections in Texas. Powers and 
duties provided for by statute can be abrogated or changed 
only by or pursuant to statute, and private resolutions by 
private parties cannot justify abuses of such powers com­
mitted by those who are entrusted with their execution, as 
were these respondents.

In conclusion, we submit that on every reasonable alter­
native, we necessarily have the situation of a deprivation 
of the plaintiff’s right not to be discriminated against at 
the polls by reason of his color; we have a lack of justifica­
tion ; 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. We have, 
therefore, precisely the situation which, in Nixon v. Hern­
don, was held to support both a cause of action for dam­
ages and the existence of Federal jurisdiction.



45

III.

The right of petitioner to vote in the primary re­
gardless of race or color was denied and abridged 
by the State of Texas, in violation of the Fifteenth 
Amendment.

In Nixon v. Herndon, supra, it was deemed unnecessary 
to consider the Fifteenth Amendment, because it seemed 
to this Court hard to imagine a more direct and obvious 
infringement of the Fourteenth, and while we believe that 
the Fourteenth Amendment is fully applicable to the 
present case, the Fifteenth Amendment likewise protects 
the petitioner.

It was determined in Nixon v. Herndon that the same 
reasons which allowed a recovery for denying the plaintiff 
a vote at a final election allowed it for denying a vote at 
a primary election that may determine the final result. 
It follows that if the denial of petitioner’s right to vote 
violated the Fifteenth Amendment, he has an equally valid 
cause of action.

The petitioner’s right to vote in this case was denied or 
abridged, if at all, “ on account of race or color” (It. 3), 
and the denial or abridgment of this right was the direct 
result of action by the State of Texas. The same argu­
ments with respect to State action contained in Point II 
supra, and addressed to the Fourteenth Amendment, are 
equally applicable to the Fifteenth.

A Primary Vote Is a Vote.

The question now to be considered is whether the peti­
tioner’s right to vote was denied or abridged by reason of 
the refusal of the respondents to permit him to vote at a 
primary election. In other words, is a vote at a primary 
election a vote within the intendment of the Fifteenth 
Amendment?

The Secretary of State,proclaimed the Fifteenth Amend­
ment to have been duly ratified on March 30, 1870. Section



31 of Title 8 of the United States Code (supra, p. 10) was 
adopted by Act of May 31, 1870 (Chap. 114, Sec. 1; 17 
Stat. 40), and evidences a contemporaneous interpretation 
of the Fifteenth Amendment which applies the right to 
vote to “ any election”  by the people in a State or any 
subdivision.

The right to vote was certainly not then intended to be 
narrowly construed, because, as Mr. Justice Hunt said in 
United States v. Reese, 92 U. S. 214, “It was believed that 
the newly enfranchised people could be most effectually 
secured in the protection of their rights of life, liberty and 
pursuit of happiness, by giving them the greatest of rights 
among free men—the ballot. Hence the Fifteenth Amend­
ment was passed by Congress and adopted by the States.”

At this point it is well to indicate that the real issue is 
not whether a primary election is an election, but whether 
a vote at such an election is a vote contemplated by the 
Fifteenth Amendment. This distinction is of importance 
in a consideration of some of the cases on this subject.

“Vote” is defined in Bouvier’s Laic Dictionary as “suf­
frage; the voice of an individual in making a choice by 
many.”

In Funk d WagnalVs Standard Dictionary it is defined 
as “ 1. A formal expression of will or opinion in regard 
to some question submitted for decision, as in electing 
officers, sanctioning laws, passing resolutions, etc.: com­
monly signified by the voice or by ballot, by a show of 
hands, or by rising to one’s feet. * * * ”

The word “vote” is used throughout the Texas Election 
Laws in its usual sense, and there is no distinction to be 
found in the use of the word in connection with primary 
or general elections. Article 3107 itself makes use of the 
expression, and unless the contrary is clearly shown, it 
must be deemed that the Legislature intended there to 
use “vote” in the same manner as it did in other parts of 
the statute.

In the light of Article 236 of the Texas Penal Code of 
1925, it is difficult to see how any different definition can



47
Ibe given to voting at a primary and voting at a general 
election. That article reads:

“Illegal voting at primary.—Any person voting 
at any primary election called and held by author­
ity of any political party for the purpose of nomi­
nating candidates of such political party for any 
public office who is not entitled to vote in the elec­
tion precinct where he offers to vote at the next 
State, county or municipal election, or who shall 
vote more than once at the same or different pre­
cinct or polls on the same day, or different days in 
the same primary election, shall be fined not ex­
ceeding five hundred dollars, or be imprisoned in 
jail not exceeding sixty days, or both.” *

Article 241 of the Penal Code provides that “Avhoever at 
a general, special or primary election votes or attempts to 
vote more than once shall be fined * * Again, Article 
216 of the Penal Code: “Any judge of an election or pri­
mary who wilfully permits a person to vote, whose name 
does not appear on the list of certified voters of the pre­
cinct " * * ” is subject to fine. And Article 3121 of the 
Texas Revised Civil Statutes of 1925 provides that the 
county tax collector shall deliver to the chairman of the 
county executive committee of each political party, for its 
use in primary elections, certified lists of qualified voters 
before the polls are open. That article further provides:

“No primary election shall be legal, unless such 
list is obtained and used for reference during the 
election. Opposite the name of every voter on said 
list shall be stamped, when his vote is cast, with a 
rubber or wooden stamp, or written with pen and 
ink, the words, ‘primary—voted,’ with the date of 
such primary under the same.” (Black type ours.)

The whole tenor of the primary laws of Texas is to 
protect the expression of the sovereign will of the people 
in nominating candidates, just as do the laws dealing with 
general elections (Love v. Wilcox, supra). The reason 
that this must be so is obvious. The primary election

* Compare Article 232, entitled “Illegal voting.”



48

involves the initial and as we shall see, in Texas, the 
determinative choice of the officers of the government. 
Would it not be absurd, then, to regard the primary elec­
tion as that of a private association, such as an election 
of a lodge or other social or business organization ?

The Democratic primary is not essentially concerned 
with the choice of officers of the Democratic Party. Its 
concern is with the staff of government. It does not in­
volve the issues of a private association, but the expression 
of the voice of the people in an affair of state.

While it is true that all of the voters at the final election 
are not eligible to vote at a primary election, this is not 
because of lack of power on the part of the voter. The 
only obstacles, other than race and color, are the pledge 
which Article 3110 requires him to make in good con­
science that he will support the nominee of the primary 
at which he votes,* and Article 240 of the Penal Code, 
which forbids voting in the primary of more than one 
party.

This definition or classification of voters on the basis of 
their principles and the dictates of their consciences is 
quite another thing from a restraint upon voting based 
upon race or color. It is a provision, in the words of Mr. 
Justice Holmes in Common-wealth v. Rogers, 63 N. E. 421 
(Mass.), adopted as a “precaution against the fraudulent 
intrusion of members of a different party for sinister pur­
poses.” In other words, the election laws grant the right 
of the citizen to express his sovereign will by his vote 
within broad classifications and aim to secure and protect 
that right.

Fifteenth Amendment Like Nineteenth.

If it were true that the right to vote guaranteed by the 
Fifteenth Amendment did not extend to primary elec­
tions, then the same would be true of the Nineteenth 
Amendment, which in identical words guarantees the right 
to vote without regard to sex. Surely no court would

* Westerman v. Mimms, 220 S. W . 178 (Texas) ; Briscoe v. Boyle, 
supra.



hold that a woman could be denied the right to vote at 
a primary merely because she was a woman. There is 
no distinction to be drawn between the two Amendments. 
The Fifteenth has been frequently held to be self-executing 
(Neal v. Delaware, 103 U. S. 370, 389; Ex parte Yarbrough, 
110 U. S. 651, 665). And even were it not self-executing, 
Section 31, Title 8 of the United States Code expresses in 
statutory form what the Amendment contemplated, to wit, 
to eliminate forever from the classification of voters any 
limitation based on race or color, such as deprived this 
petitioner of his vote.

Historical Error.

Nor is the suggestion of the District Court (E. 20), 
that primary elections were unknown at the time of the 
adoption of the Fifteenth Amendment sound, nor does it 
serve to distinguish that Amendment from the Nineteenth 
Amendment. The Fifteenth Amendment was adopted in 
1870. On March 26,1866, California passed an Act (Chap. 
359) regulating primaries, and on April 24, 1866, New 
York passed an Act (Chap. 783) also dealing with pri­
maries.* And in 1868 the Union League Club of Phila­
delphia offered a prize to anyone who would suggest the 
best plan by which to overcome the evils of the primary 
system, f

Shortly on the heels of the passage of the Amendment 
came primary legislation in other States. In 1871 Ohio 
and Pennsylvania followed the example set by New York 
and California. In 1873 Nevada followed suit and in 1875 
Missouri passed regulatory measures (Merriam & Over­
acker, supra, p. 12). These statutes were so widespread 
throughout the country as to reveal a general knowledge 
of the primary as a method of nomination at the time of 
the adoption of the Fifteenth Amendment.
_* See Merriam & Overacker, supra, pp. 8-12; Sargent on Law of ■Primary Elections, 2 Minn. Law Rev. 97.
f  Union League Club of Philadelphia, “Essays on Politics,” 1868.



50
The Newberry and Other Cases Distinguished.

The respondents and the District Court (R. 26) placed 
reliance on the decision of this Court in Newberry v. 
United States, 256 U. S. 232, which involved the constitu­
tionality of Section 8 of the Federal Corrupt Practices 
Act, which undertook to limit the amount of money which 
a candidate for Representative in Congress or for United 
States Senator might contribute or cause to be contributed 
in procuring his nomination or election. In so far as it 
applied to a primary election of candidates for a seat in 
the Senate, the Fifteenth Amendment was in no way in­
volved.

The meaning of the phrase “the right to vote” was not 
and could not have been considered, since there had been 
no denial or abridgment of that right on account of race, 
color, previous condition of servitude, or of sex. The sole 
constitutional question involved concerned the interpreta­
tion to be given to Article I, Section 4, of the Constitution, 
which provides:

“ The times, places and manner of holding elec­
tions for senators and representatives, shall be pre­
scribed in each State by the Legislature thereof; 
but the Congress may at any time by law make 
or alter such regulations, except as to the places 
of choosing Senators.”

The question, therefore, was whether the limited right 
to deal with “the times, places and manner of holding 
elections” involved the right to regulate the use of money 
in connection with the primary election of candidates for 
the Senate and House of Representatives.

It was held that an undefined power in Congress over 
elections of Senators and Representatives not derived from 
Article I, Section 4, could not be inferred from the fact 
that the offices were created by the Constitution or by 
assuming that the Government must be free from any 
control by the States over matters affecting the choice of 
its officers. It was further held that the elections within



51
the original intendment of Section 4 of Article I were 
those wherein Senators should be chosen by Legislatures 
and Representatives by voters “possessing the qualifica­
tions requisite for electors of the most numerous branch 
of the state legislature.”

It was likewise held that the Seventeenth Amendment 
did not modify Article I, Section 4, which was the source 
of congressional power to regulate the times, places and 
manner of holding elections ; and, finally, that the power 
to control party primaries for designating candidates for 
the Senate was not “within the grant of power to regulate 
the manner of holding elections.”

The “ right to vote” is infinitely more comprehensive in 
its meaning, scope and operation than is the reference to 
the “manner of holding elections for senators and repre­
sentatives,” which was under consideration in Newberry 
v. United States.

Moreover, in that case Justices McKeynolds, Holmes, 
Day and Yandevanter voted for reversal on the constitu­
tional ground, while Mr. Chief Justice White, differing 
on the constitutional question, voted for a reversal and a 
new trial because of an error in the charge to the jury, 
and Justices Pitney, Brandeis and Clarke, likewise finding 
error in the instructions to the jury, were of the opinion 
that the Act itself wras valid. Mr. Justice McKenna con­
curred in the opinion of Mr. Justice McReynolds “as 
applied to the statute under consideration, which was 
enacted prior to the Seventeenth Amendment, but reserved 
the question of the power of Congress under that Amend­
ment,”

It is clear from a reading of the opinions in the New­
berry case that the principal issue was that of the 
sovereignty of the States as against the sovereignty of 
the Federal Government. The question was treated from 
the point of view of these contending sovereignties in their 
relation to the candidates. No consideration was given 
to the right of the citizen to vote, and consequently the 
decision is no more relevant here on the question of the



right to vote under the Fifteenth Amendment than it was 
in Nixon v. Herndon on the right to bring a cause of action 
for the denial of a vote by means of unconstitutional 
classification.

To say, as did this Court in the Newberry case (p. 250), 
that primaries are “ in no sense elections for an office but 
merely methods by which the party adherents agree upon 
candidates whom they intend to offer and support for 
ultimate choice by all qualified voters,” does not dispose 
of the basic questions here, which are (1) whether a color 
classification shall enter into a definition of “party ad­
herents” and (2) whether the method of agreement upon 
candidates to be offered and supported is a vote within 
the meaning of the Fifteenth Amendment.

Koy v. Schneider, 110 Tex. 369, likewise has no bearing 
on this case. There the word “ elections” in the Constitu­
tion of the State of Texas was held not to include pri­
maries. The case involved the Women’s Suffrage Act of 
Texas enacted before the Nineteenth Amendment and 
which purported to give women the right to vote in a 
primary. The Constitution restricted suffrage in “elec­
tions” to men, and the Court, in order to permit women 
to vote in primaries under the statute, adopted a con­
struction of the word “ elections” contained in the Consti­
tution which limited its application to general elections. 
Here, again, the question at issue was not a definition of 
the right to vote but of the meaning of an election, and 
the Court must have been, influenced by the relative im­
portance of primary elections over general elections.

On the other hand, in Ashford v. Goodwin, 103 Tex. 491, 
and Anderson V. Ash, 62 Tex. Civ. App. 262, it was held 
that the words “contested elections” applied to primaries 
as well as general elections and that consequently the 
District Courts had jurisdiction under the Constitution 
to consider a contest arising out of a primary election.



Even if it could be said that the refusal to permit the 
petitioner to vote at the primary election was not a denial 
of his right to vote, because he could still express his will 
at the general election, nevertheless his right to vote would 
have been abridged.

In States such as Texas, where the primary election is 
in a realistic sense the only true election, the vote at the 
final election is merely a formal flourish. The courts of 
Texas have taken judicial notice of the fact that for all 
practical purposes, and certainly in so far as State elec­
tions are concerned, there is only one political party, and 
that the real political battles of the State are not those 
held at the final election, but those waged for nomination 
at the Democratic primaries.*

So in Ex rel. Moore V. Meharg (Tex. Civ. App. 1926), 
287 S. W. 670, 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 
general election. In other words, barring certain 
exceptions, a primary election is equivalent to a 
general election.” (Black type ours.)

In an article by Meyer M. Brown in 23 Michigan Law 
Review, 279, the author says:

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

Petitioner’s Right to Vote Abridged Even If Not Denied.

* In 1930, Sterling, Democrat, defeated Talbot, Republican, by a plur­ality of 124,000 for Governor. In 1926, Moody, Democrat, defeated Haines, Republican, by 233,068 to 31,531. In 1924, Mrs. Ferguson, Democrat, beat Butte, Republican, 422,059 to 298,046 for Governor. In 1928, when the State of Texas went Republican for President, Connally, Democrat, de- (yated Kennerly, Republican, 566,139 to 129,910 for United States Senator vWorld Almanac, 1931, p. 904).



And in Newberry v. United States, supra, Mi’. Justice 
White said, at pages 266-267:

“The large number of States which at this day 
have by law established senatorial primaries shows 
the development of the movement which originated 
so long ago under the circumstances just stated. 
They serve to indicate the tenacity of the conviction 
that the relation of the primary to the election is so 
intimate that the influence of the former is largely 
determinative of the latter. I have appended in the 
margin a statement from a publication on the sub­
ject, showing how well founded this conviction is 
and how it has come to pass that in some cases at 
least the result of the primary has been in substance 
to render the subsequent election merely perfunc­
tory.” (Black type ours.)

The publication referred to by Mr. Justice White as in 
the margin is Mcrriam on Primary Elections (1908 Ed., 
pp. 83-85), where it is said:

“ In many western and southern states the direct 
primarv method has been applied to the choice of 
United" States senators as well as to state officers. 
In the southern states, victory in such a primary, 
on the Democratic side, is practically the equivalent 
of an election, as there is but one effective party in 
that section of the country.”

And so, too, in Koy v. Schneider, supra, Chief Justice 
Phillips said:

“ No court can blind its eyes to this universally 
known fact. * * * Of what use is it to enforce 
the Constitution only in general elections, when, in 
fact, the primary elections are the decisive elections 
in this State in the choosing of public officers.”

Consequently only by the most tortuous sophistry can 
it be said that in denying the Negro the right to vote in 
the Democratic primaries of Texas and relegating him to 
the general election, his right to vote is neither denied nor 
abridged.



00

The rationale of the very attempt of Legislatures to 
control primaries must be that the citizen’s right to vote 
in the final election would be abridged if a manipulation 
of primaries could in effect nullify the free expression of 
the voter’s will at the general election.

Nor is it a valid answer to say that though the Negro 
is denied the right to vote in a Democratic primary he 
could still vote at a Republican primary. In the first 
place, under Chapter 67 of the Laws of 1927, the Republi­
can State Executive Committee could adopt a resolution 
similar to that which was passed by the Democratic Com­
mittee. Secondly, to deprive him of his right to select 
between existing parties, even if not in violation of the 
Fifteenth Amendment, would be clearly a violation of the 
Fourteenth Amendment as an invalid classification which 
permits the white voter to take full advantage of the choice 
given under Article 3110 and deprives a colored man of 
a similar right to determine with wliat party in good con­
science he should ally himself. Thirdly, as we have seen, 
it is idle to refer a man to the Republican Party in the 
State of Texas when the Democratic Party is the “one 
effective party in that section of the country” and the 
general election is “ merely perfunctory.”

IV.

Conclusion.

From what has been said it is clear that the State has, 
either by overt act of its Legislature or through the agency 
of the Democratic State Executive Committee or the 
judges of election, made a classification, based upon race 
and color, which has denied the petitioner the right to 
vote in a primary election. This was only made possible 
by the action of the State—either its direct action or its 
withdrawal of restraint or its grant of power to persons 
who could not have acted but for the grant of power.



56
This classification lias not only worked a denial of the 
equal protection of the laws solely by reason of the peti­
tioner's race and color, but it has in a very real sense 
deprived him of his vote, of an effective voice in the elec­
tion of State officers, Congressman and Senator.

The result is unquestionably the disenfranchisement of 
the Negroes of Texas, and if the device here used is sus­
tained by this Court there can be no question but that it 
will be followed by similar legislation in other States (see 
Bliley v. West, supra; Holman V. Robinson, supra). It 
will mean the disenfranchisement of millions of people, 
and history has shown that the disenfranchised, even more 
than the disinherited, are fruitful soil for communist 
propaganda on the one hand and enslavement on the other.

A narrow construction of the Fourteenth and Fifteenth 
Amendments in this case can only result in grave injury 
to the institutions which we have built up and to the 
whole structure of civil liberty which grew out of the 
Civil War days.

It is respectfully submitted that the judgment 
appealed from should be reversed, and the cause re­
manded for trial upon the merits.

James Marshall,
Nathan R. Margold,
A rthur B. Spingarn,
F red C. K nollenberg,
E. F. Cameron,

Counsel for Petitioner. 
N. H. K ugelmass,

On the Brief.







..





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(31199)

In the Supreme Court of the United States

OCTOBER TERM, 1925.

No. 480.

L. A. NIXON, PLAIN TIFF IN ERROR,

VS.

C. C. HERNDON AND CHARLES PORRAS.

IN ERROR TO THE DISTRICT COURT OP THE UNITED STATES 
FOB THE WESTERN DISTRICT OF TEXAS.

BRIEF FOR PLAINTIFF IN ERROR.

Moorfield Storey, 
Boston, Mass.

J ames A. Cobb, 
Washington, D. C. 

R obert J. Channell, 
El Paso, Texas. 

F red C. K nollenbebg, 
El Paso, Texas.





INDEX

Statement of the Case...................................................  1
Assignments of E rro r ....................................................  6

Point No. 1 .................................................................. ... 9
Point No. 2 ....................................................................   12

Argument.................................................................  17
Point No. 3 ....................................................................... 19

Argument..................................................................  20
Point No. 4 ......................................................................  21

Argum ent.................................................................  22
Point No. 5 ....................................................................... 27

Argum ent.................................................................. 27

CITATIONS.

Act Legislature State of Texas (1st Called Session
1923, p. 7 4 ) ..................................................................... 9

Article 3093a..................................................................10,13
Article 3089a...................................................................  10
Anderson vs. Myers, 182 Fed. 223............................. 12, 19
Act Leg. Tex. 1918, Chap. 60, Sec. 1 .......................... 12
Article 3118......................................................................  14
Article 3174-C, Sec. 2 ...................    14
Article 3174-D.................................................................  14
Article 3174-E..................................................................  15
Article 3175-F...........................    15
Article 3174-Gr . ................................................................  15
Article 3174-W W ............................................................  16
Art. 6 , Const. Tex...........................................................  19
Art. 6, Tex. Const............................................................  27
Ashford vs. Goodwin, 103 Tex. 491.............................  27
Ashford vs. Goodwin, 103 Tex. 491; 131 S. W. 535 

Ann, Cases 1913A, 699 ..............     16



[I Index

Anderson vs. Ashe, 62 Tex. Civ. App. 262; 130 S.
W. 1044 ......................................................................  16

Anderson vs. Ashe, 130 S. W. 1046.............................. 27
Black Const. Law, p. 648.............................................. 27
Connolly vs. United Sewer Pipe Co., 184 U. S. 558.. 22
Cooley Const. Lim. Sec. 599.......................................... 27
Davis vs. Burke, 179 II. S. 399...................................... 26
Ex parte Siebold, 100 IT. S. 371, L. Ed. 717..............  19
Ex parte Yarborough, 110 U. S. 651..........................20, 22
Ex parte Virginia, 100 TJ. S. 339.................................. 22
G. C. & S. F. By. vs. Ellis, 165 IT. S. 150............ 22, 23
Guinn vs, U. S., 238 IT. S. 347 ; 59 L. Ed. 1340.. .12, 19, 26
Hammond vs. Ashe, (Sup. Ct.) 131 S. W. 539..........  16
Judicial Code U. S. Sec. 24.......... .................................  U
Koy vs. Schneider, 110 Tex. 369, 218 S. W. 479-

' 8 7 ..............................................................................18, 27
Lytle vs. Halff, 75 Tex. 134, 12 S. W. 610.............. 18
McPherson vs. Blacker, 146 II. S. 1, 36 L. Ed. 869

.............................................................22, 24, 26
Myers vs. Anderson, 238 U. S. 368; 59 L. Ed. 1349. .12,19
People vs. Stresslieim, 240 111. 278.............................. 27
B. S. TJ. S. Art. 1978 & 2004.......................................... 19
State vs. Phelps, 144 Wis. 1 .......................................... 29
Scarbrough vs. Eubank, 52 S. W. 569.......................... 18
Strauder vs. W. Va., 100 IT. S. 303, 25 L. Ed. 664

.............................................................................19, 22, 23
IT. S. vs. Beese, 92 IT. S. 214......................................19, 21
IT. S. vs. Cruikshank, 92 IT. S. 542............................  22
IT. S. Const. 14th & 15th Amendments........................ 19
Waples vs. Marrast, 108 Tex. 5, 184 S. W. 180 
Wiley vs. Sinkler, 179 U. S. 58; 45 L. Ed. 84. . .  
Yick Wo vs. Hopkins, 118 H. S. 356..................



(31199)

In the Supreme Court of the United States
OCTOBER TERM, 1925.

No. 480.

L. A. NIXON, PLAIN TIFF IN ERROR, 

YS.

C. C. HERNDON AND CHARLES PORRAS.

IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES 
FOE THE WESTERN -DISTRICT OF TEXAS.

STATEMENT OF THE CASE.

This is an action at law for damages against elec­
tion officers by one whom they prevented from vot­
ing in the primary election because of his race. It 
involves the validity of an act of the Texas Legisla­
ture, which provides that a negro cannot vote at a 
democratic primary election.

Suit was filed by plaintiff in error in the district 
court of the United States for the Western District 
of Texas, at El Paso, for damages, against defend­
ants in error here, who filed a motion to dismiss, which



2

was sustained by the court; whereupon, the plaintiff 
filed his petition for writ of error to the Supreme 
Court of the United States, which was duly allowed, 
and the matter is before this court for review.

The issues are presented by plaintiff’s trial pe­
tition (R. 2-8).

Briefly stated, the plaintiff alleged that on July 
26th, 1924, a general primary election was held in the 
State of Texas and the county of El Paso, for the 
trarpose of selecting candidates for all precinct, county, 
district and state offices, and for representative of the 
United States Congress and for United States Sen­
ator, on the Democratic ticket. That plaintiff was a 
bona fide Democrat with all the qualifications of a 
voter, in possession of his poll tax receipt duly issued, 
and entitled to vote in Precinct Number Nine in El 
Paso County, Texas, and that he duly and timely ap­
plied to the defendants, who were the judge and asso­
ciate judge, respectively, of elections in said precinct 
number nine, and they refused to supply him with a 
ballot, or permit him to vote, solely on the ground 
that he was a negro (R. 3).

That said refusal was based upon the following 
act of the legislature of the State of Texas, enacted 
in May 1923, at the first called session of the thirty- 
eighth legislature of said state, which is designated 
as Article 3093a, a portion of which is as follows:

“ All qualified voters under the laws and con­
stitution of the State of Texas, who is a bona 
fide member of the democratic party, shall be 
eligible to participate in any democratic primary



3
election, provided such voter complies with all 
laws and rules governing party primary elections; 
however in no event shall a negro be eligible to 
participate in a democratic party primary elec­
tion held in the State of Texas and should a 
negro vote in a democratic primary election, such 
ballot shall be void and election officials are herein 
directed to throw out such ballot and not count 
the same.”

That said Act of the legislature is in violation of 
the constitution of Texas, especially Article Six there­
of, prescribing the qualifications of voters, and of Sec­
tion Nineteen of Article One, providing that no citizen 
shall be deprived of life, liberty, property, privileges 
or immunities, or in any manner disfranchised except 
by the due course of the law of the land, and of Sec­
tion Twenty-Nine of Article One of the Texas Con­
stitution, which provides that everything in said Bill 
of Bights is excepted out of the general powers of 
government and shall forever remain inviolate, and 
all laws contrary thereto ( . . . . )  shall he void (R.
4).

Also, that said Act is violative of the Fifteenth 
Amendment to the Constitution of the United States, 
and of Sections 1979 and 2004 of the United States 
Statutes (R. 5).

That plaintiff has voted for many years in all 
elections, both primary and general, as a democrat, 
and was willing to make an affidavit that he was a 
bona fide member of said party, and at the preceding 
general election, had voted for the nominees of said 
party. That he possessed all the qualifications pre-



4
scribed by the constitution and laws of Texas, as an 
elector and voter, in all elections, save and except that 
portion of the Act of the legislature of May, 1923, 
providing that a negro shall be ineligible to vote in a 
democratic primary election, and that he was prevent­
ed from voting solely because of his race (R. 5-6).

That said defendants presented to the plaintiff in 
writing the following certificate of their refusal for him 
to vote, to-wit:

‘ ‘ This is to certify that we, C. C. Herndon 
and Chas. Porras, Presiding and Associate Judges, 
respectively, have not permitted L. A. Nixon to 
vote, as per Instruction 26 given in ballot boxes 
to election holders.

C. C. Herndon 
Chas. Porras.”

July 26, 1924

That said Act applies only to the democratic pri­
maries, thereby discriminating between the two great 
political parties, and restricts his freedom of choice, 
in violation of the fourteenth amendment to the Con­
stitution of the United States, and to Section Two of 
the Bill of Rights in the Constitution of Texas, which 
guarantees the preservation of a republican form of 
government (R. 6-7).

That if said Acts be upheld on the ground that 
a primary is not an election, the same is void as in 
conflict with Section Thirty-five of Article Three of 
the Texas Constitution, prohibiting plurality of sub­
jects embraced in the title; because said Act contains 
in addition to the Article 3093a above, another Article 
numbered 3089a, as follows:



5
“ All supervisors, judges and clerks of any

election shall be qualified voters of the election
precinct in which they are named to serve”  (R.
7).

Damages are claimed in the sum of $5,000.00 (R.
7).

Defendants filed a motion to dismiss upon ten 
distinct grounds, the substance of which seems to be:

1. That the subject matter of the suit is political 
in its nature and the court is therefore without juris­
diction; and

2. That said primary election was not an election 
within the meaning of the constitution of the United 
States, or of any laws pursuant thereto, or of the four­
teenth and fifteenth amendments to said constitution; 
and

3. That the petition states no cause of action 
against defendants for damages for refusing a vote, 
for the reason that the statutes and laws of the state 
of Texas forbid the defendants to receive such vote 
(R. 8-9).

The court sustained said motion and entered his 
order accordingly, but without stating the grounds up­
on which his action was based (R. 9).



6

ASSIGNMENTS OF ERRORS.

I.
That the United States District Court for the 

western district of Texas erred in sustaining the mo­
tion to dismiss interposed by the defendants to the 
amended complaint filed in said cause.

II.

The said district court for the western district of 
Texas erred in sustaining defendants’ motion to dis­
miss and in dismissing said cause by its order of De­
cember 4, 1924, for the following reasons, to-wit:

(a) This case involves the construction and ap­
plication of the Constitution of the United States, and 
especially of the Fifteenth Amendment thereto.

(b) This is a case in which a law of the state of 
Texas is claimed to be in contravention of the Con­
stitution of the United States.

(e) This is a suit for damages to redress the dep­
rivation under color of law of a right and privilege 
secured by the laws of the United States, providing 
for equal rights of its citizens and of all persons within 
its jurisdiction.

(d) This is a suit for damages for being depriv­
ed of the right to vote, solely on account of race and 
color, and is based upon rights guaranteed by the 
Constitution and laws of the United States.

(e) The plaintitf was denied the right to vote 
in the democratic party primary election by the elec-



7
tion judges in charge thereof, because of an instruc­
tion that no negro should he allowed to vote, his bal­
lot should be void and not be counted; which Act 
is in violation of the Constitution and laws of the 
United States and of the state of Texas, and discrim­
inates against plaintiff solely (fol. 18) because of his 
race and color.

(f) Under the allegations of the complaint in 
this cause, plaintiff, at the time he presented himself 
at the polls, possessed every qualification of a voter 
which had been prescribed by the constitution and laws 
of the state of Texas prior to that date, and that he was 
prevented from casting a ballot by the defendants here­
in solely upon the ground that he was a negro as 
defined by the statutes of Texas, and belonged to the 
colored race.

(g) Under the Acts of Congress, and especially 
Sections 1979 and 2004 thereof, the defendants in this 
cause are liable in damages to the plaintiff for their 
act in depriving him of the right to vote.

III.

The petition in this cause having alleged that 
plaintiff possessed all the qualifications of a voter pre­
scribed by the constitution and laws of the state of 
Texas prior to the enactment of the legislature deny­
ing a negro the privilege of casting a ballot in a dem­
ocratic primary; and the Constitution and laws of the 
United States having by their own force expunged 
from said Act of the legislature said proviso discrim­
inating against the negro, the trial court erred in sus­
taining the motion and dismissing said cause.



8
IV.

The trial court erred in dismissing a complaint, 
the allegations of which upon the motion to dismiss 
are admitted, which clearly and unequivocally alleges 
damages in excess of the sum of three thousand 
($3,000.00) dollars for the deprivation of the rights 
and privileges guaranteed by the Constitution and laws 
of the United States and of the state of Texas, and 
of an act of discrimination against him for the sole 
reason that he belongs to the negro race.

V.

The trial court erred in sustaining a motion to 
dismiss which (fol. 19) admits the allegations of the 
complaint and advances no valid ground to escape 
liability fixed upon the defendants by the statutes of 
the United States enacted in conformity with the Con­
stitution thereof.

AVe shall undertake to discuss briefly the legal 
questions, which we feel will cover the questions rais­
ed by our assignments of errors under the following 
points.

Point 1. The plaintiff in error asserts rights 
under the Constitution and laws of the United States, 
and by virtue thereof this action is within the jurisdic­
tion of the District Court of the United States.

Point No. 2. A  democratic primary election in 
Texas is a public election established, recognized and 
regulated by the constitution and laws of said state.

Point No. 3. Casting a ballot in a primary elec­
tion established and regulated by state law is an act



9
of voting within the meaning of the Fifteenth Amend­
ment to the Constitution of the United States; and the 
immunity against discrimination on account of race 
or color which is guaranteed by said amendment, pro­
tects the plaintiff in his right to vote in such primary 
election where the only obstacle to be interposed is 
that he is a negro.

Point No. 4. When the negro, by virtue of the 
Fifteenth Amendment, acquired- immunity from dis­
crimination in voting on account of his race and color, 
he thereby acquired the right and privilege as a free 
man to exercise, to the same extent as a white man, 
his untrammeled choice in the selection of parties or 
candidates; and when the legislature of a state, solely 
because of his race and color, undertakes by law to 
exclude him from any party, or deny him the same 
latitude in registering his preference as a member of 
any party of his choice that it allows to white mem­
bers of such party, it thereby abridges his right to 
vote under the Fifteenth Amendment and denies to 
him the equal protection of the law guaranteed by the 
Fourteenth Amendment.

Point No. 5. That Article 3107, Revised Statutes 
of Texas (1925), violates Article Six of the Constitu­
tion of the State of Texas.

POINT No. 1.

The plaintiff in error asserts rights under the Con­
stitution and laws of the United States, and by virtue 
thereof this action is within the jurisdiction of the Dis­
trict Court of the United States.

The Act of the Legislature of the State of Texas 
(1st Called Session 1923, page 74), by virtue of which



10
the defendants in error as officers of the general dem­
ocratic primary election refused to permit the plain­
tiff in error to vote because of his race and color, is 
as follows:

Article 3093a: All qualified voters under the 
laws and constitution of the State of Texas who 
are bona fide members of the democratic party 
shall be eligible to participate in any democratic 
party primary election, provided such voter com­
plies with all laws and rules governing party pri­
mary elections; however, in no event shall a negro 
be eligible to participate in a democratic party pri­
mary election held in the State of Texas, and 
should a negro vote in a democratic primary elec­
tion, such ballot shall be void and election of­
ficials are herein directed to throw out such ballot 
and not count the same.

Sec. 2: Also amending Article 3089 of the
Revised Civil Statutes of the State of Texas, of 
1911, by adding thereto a new section, to be known 
as Article 3089a, and to read as follows:

Article 3089a. All supervisors, judges and 
clerks of any election shall be qualified voters of 
the election precinct in which they are named to 
serve.

Section One of the Fifteenth Amendment to the 
Constitution of the United States, provides:

The rights of citizens of the United States to 
vote shall not be denied or abridged by the United 
States or by any state, on account of race, color 
or previous condition of servitude.

Section One of the Fourteenth Amendment pro­
vides :

All persons born or naturalized in the United 
States and subject to the jurisdiction thereof are



11

citizens of the United States and of the state 
wherein they reside. No state shall make or en­
force any law which shall abridge the privileges 
or immunities of citizens of the United States, 
nor shall any state deprive any person of life, 
liberty or property without due process of law, 
nor deny to any person within its jurisdiction 
the equal protection of the laws.

Section twenty-four of the judicial code of the 
United States provides that the District Courts shall
have original jurisdiction ( ..........) of all suits ( ...........)
which arise under the Constitution and laws of the 
United States, where the amount of the controversy 
exceeds $3,000.00, with the further proviso that the 
sum or value of the matter in controversy shall not 
be construed to apply to any of the cases mentioned 
in the succeeding paragraphs of said section. Among 
such succeeding paragraphs are the following:

Eleventh: Of all suits brought by any per­
son to recover damages for any injury to his per­
son or property on account of any act, done by 
him, under any law of the United States, for the 
protection or collection of any of the revenues 
thereof, or to enforce the right of citizens of the 
United States to vote in the several states.

Twelfth: 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 in furtherance of any conspiracy mentioned 
in section nineteen hundred and eighty, Re­
vised Statutes.

Fourteenth: Of all suits at law or in equity 
authorized by law to be brought by any person 
to redress the deprivation, under color of any



12
law, statutes, ordinance, regulation, custom, or us­
age of any state, of any right, privilege, or im­
munity, secured by the Constitution of the United 
States, or of any right secured by any law of the 
United States providing for equal rights of citi­
zens of the United States, or of all persons with­
in the jurisdiction of the United States.

Anderson v. Myers, 182 Fed. 223.
Myers v. Anderson, 238 XL S. 368; 59 L. Ed.

1349.
Guinn v. U. S., 238 U. S. 347; 59 L. Ed. 1340.
Wiley v. Sinkler, 179 U. S. 58; 45 L. Ed.

84.

POINT No. 2.

A democratic primary election in Texas is a pub­
lic election established, recognized, and regulated by 
the Constitution and laws of said state.

Chapter Ten, Title 49, Revised Statutes of Texas 
of 1911, in force when said primary was held, provides 
for nomination by parties, and in Article 3085 defines 
a primary as follows:

The term, “ primary election,”  as used in 
this chapter, means an election held by the mem­
bers of an organized political party for the pur­
pose of nominating the candidates of such party 
to be voted for at a general or special election, 
or to nominate the county executive officers of a 
party (Art. 3100-1925 Revision).

The succeeding articles of said chapter provide 
in detail for the time and manner of holding such elec­
tions. Article 3093, as amended by the Acts of the 
Legislature of Texas of 1918, Fourth Called Session, 
Chapter Sixty, Section One, provides the qualifications 
for voting as follows:



13
No one shall vote in any primary election or 

convention, unless he is a citizen of the United 
States and has paid his poll tax or obtained his 
certificate of exemption from its payment, in 
cases where such certificate is required, before 
the first of February next preceding, which fact 
must be ascertained by the officers conducting the 
primary election by an inspection of the certified 
lists of qualified voters of the precinct, and of 
the poll tax receipts or certificates of exemption; 
nor shall he vote in any primary election except 
in the voting precinct of his residence; provided, 
that if this receipt or certificate be lost or mis­
placed, or inadvertently left at home, that fact 
must be sworn to by the party offering to vote; 
and provided further, that the requirements as 
to presentation of the poll tax receipt, certificate 
of exemption or affidavit shall apply only to cities 
of ten thousand population or over as shown by 
the last United States census; provided, that the 
executive committee of any party for any county 
may prescribe additional qualifications for voters 
in such primaries, not inconsistent with this title.

This Act shall not be held or construed to 
repeal or in any way limit or restrict the right 
of women to vote in primary elections or conven­
tions given them by any law enacted at the fourth 
called session of the 35th legislature.

All laws or parts of laws in conflict herewith are 
repealed.

(Note: The italics are ours, as they clear­
ly set out the legislative view.)

The Act complained of in this suit amends this 
Article by adding thereto Article 3093a, which is copied 
above.



14
The following sections provide for paying the ex­

penses of such election, for official ballot, the party 
pledge, and minute details unnecessary to state. 

Article 3118 is as follows:

The same precautions required by law to se­
cure the purity of the ballot box in general elec­
tions, in regard to the ballot boxes, locking the 
ballot boxes, sealing the same, watchful care of 
them, the secrecy in preparing the ballot in the 
booth or places prepared for voting shall be ob­
served in all primary elections.

Chapter 10a embracing the Acts of the Legis­
lature of 1913, Special Session, page 101 (being 
Chapter 12 of the 1925 Revision, Art. 3086 et seq.), 
provides for election for United States Senators 
by direct vote.

Section Two of said Act, being Article 3174-C, 
provides:

Every law regulating or in any manner gov­
erning elections or the holding of primaries in 
this state shall be held to apply to each and every 
election or nomination of a candidate for a United 
States senator so long as they are not in con­
flict with the Constitution of the United States 
or of any law or statute enacted by the congress 
of the United States regulating the election of 
United States senators or the privisions of this 
Act.

Article 3174-D, provides:

The name of no candidate for United States 
senator shall be placed upon the official ballot of 
any party or of any organization as the nom­
inee of said party or organization for said office 
unless said candidate has been duly nominated 
and selected as herein provided.



15
Article 3174-E, provides:

Each and every party desiring to nominate 
a candidate for United States senator shall, if 
such election is to be held on the first Tuesday 
after the first Monday in November of any year, 
nominate or select such candidate or candidates 
for United States senator at a general primary 
election to be held throughout the state on the 
fourth Saturday in July next preceding such elec­
tion for United States Senator.

Article 3174-F, provides:

At each and every primary election held in 
this state for the nomination of a candidate for 
United States senator, each and every provision 
of the laws of this state which has for its object 
the protection of the ballot and the safe guard­
ing of the public against fraudulent voting, ille­
gal methods, undue influence, corrupt practices, and, 
in fact, each and every restriction of whatever 
kind or character or nature as applied to any 
election held in this state whether general, spe­
cial or primary shall be held to apply to a primary 
election, held for or when a candidate for United 
States senator is to be nominated, when not in 
conflict with the provisions of this Act. And the 
violation of any such provisions or restrictions 
at any such primary election shall be punished in 
the same manner as prescribed by law for the 
violation of any election law whether general, spe­
cial or primary.

Article 3174-G, provides:
When the law with reference to holding sena­

torial primaries is silent, the election officers in 
securing supplies, in conducting the election, and 
in making returns and in canvassing the votes 
shall in every particular follow the methods pro­
vided by law covering primary elections or gen-



16
eral elections held for the purpose of electing or 
nominating state, district, county and precinct of­
fices.

Article 3174-WW, provides the qualifications of 
voters:

At each and every primary held for the pur­
pose of nominating a candidate for United States 
senator no person not a qualified elector to vote 
for United States senator under the Constitution 
of the United States shall be permitted to vote 
and no person shall vote for any candidate for 
the nomination for United States senator who does 
not belong to the same political party with which 
the voter affiliates and when any voter attempts 
to vote for any person as a candidate for the 
nomination for United States senator, and is chal­
lenged, he shall, before being permitted to vote, 
make an affidavit that he is a bone fide member 
of said party, and if he voted in the preceding 
general election held for the election of state of­
ficials, he voted for the nominees of the party 
whose ticket he desires to vote. Upon making 
such an affidavit he shall be permitted to vote.

Section Eight of Article Five of the Constitution 
of Texas provides that the District Court shall have 
original jurisdiction— of contested elections. This pro­
vision has been held by the courts of Texas to confer 
upon the District Court jurisdiction over contested 
primary elections.

Ashford v. Goodwin, 103 Tex. 491; 131 S. W. 
535 Ann. Cases 1913A, 699.

Hammond v. Ashe-, (Sup. Ct.) 131 S. W. 539.
Anderson v. Ashe, 62 Tex. Civ. App. 262: 

130 S. W. 1044.



17
Argument.

We copy from the opinion of the court in the 
Anderson Ashe case, the following:

“ We come now to a consideration of the ques­
tion of whether the Constitution authorizes the 
legislature to confer jurisdiction upon the district 
court to hear and determine primary election con­
tests. Section Eight of Article Five of the Con­
stitution, as amended in 1891, expressly confers 
upon the district court jurisdiction ‘ of contested 
elections,’ and further provides that ‘ said court 
shall have general original jurisdiction over all 
causes of action whatever for which a remedy or 
jurisdiction is not provided by law or this Con­
stitution, and such other jurisdiction original and 
appellate as may be provided by law.’ It is in­
sisted by respondents that the term ‘ contested 
elections,’ as used in this section of the Constitu­
tion, cannot be construed to include primary elec­
tion contests, but must be restricted to the con­
test of elections by which the final choice of the 
people for a public officer or measure is express­
ed. * * * We are of opinion that the word
‘ elections’ as used in the section of our Constitu­
tion above quoted, should be construed to include 
any election in which the public or a large por­
tion thereof participates, and which is held under 
and regulated by the statutes of this state. * *
* The contest of a primary election held under 
the present statutes of this state authorizing and 
governing such elections is in no sense more of a 
political or non-judicial question than the contest 
of a general election, and, while primary elec­
tions were not authorized by law at the time the 
amendment to the Constitution was adopted and 
was not in the minds of the electors when they 
voted for said amendment, we think such elections



18
were clearly included in the terms of the amend­
ment.

Scarbrough v. Eubank, 52 S. W. 569; Lytle 
v. Half, 75 Tex. 134, 12 S. W. 610.”

If the Texas Courts in the above cases hold a 
primary election comes within the term election as 
used in Article Five of the Texas Constitution, we 
fail to appreciate the force of the argument attempt­
ing to exclude it under Article Six of the same Con­
stitution.

In Waples v. Marrast, 108 Texas, 5, 184 S. W. 
180, and in Koy v. Schneider, 110 Tex. 369, 218 S. W. 
479-87, both by the Texas Supreme Court, the above 
decisions are recognized as established law; although 
the Waples case holds that, taxes may not be levied 
to bear the expenses of the primary, and the Koy 
case, that the legislature may permit women to vote 
in a primary, although they were not at that time 
entitled to vote in a general election. We call especial 
attention to the dissenting opinion in the Koy case 
by Chief Justice Phillips, who wrote the majority 
opinion in the Waples case; he reviews this decision 
carefully and we think well.

It is alleged in plaintiff’s petition in this case, 
and for the purpose of this hearing is admitted, that 
the plaintiff possessed every qualification of a voter 
prescribed by the Constitution and laws of Texas prior 
to the enactment of Article 3093a and every qualifica­
tion subsequent thereto save only that he falls with­
in the proviso of said Article which prohibits a negro 
from voting in a democratic primary.



19
Article Six of the Constitution of Texas gives 

the qualifications of voters and the same qualifica­
tions are re-enacted by the legislature in chapter four 
of title forty-nine of the Revised Statutes of Texas. 
These and other statutory provisions we deem it un­
necessary to copy in view of the fact that it is un­
disputed that plaintiff possessed all such qualifications 
and had complied with every requirement of the law 
entitling him to vote in said primary and that he had 
actually participated in all general elections and in 
all democratic party primary elections for a number 
of years past, an|d that he was refused a ballot in 
this instance solely because he was a “ negro.”

POINT No. 3.

Casting a ballot in a primary election establish­
ed and regulated by state law is an act of voting with­
in the meaning of the fifteenth amendment to the 
Constitution of the United States; and the immunity 
against discrimination on account of race or color 
which is guaranteed by said amendment protects the 
plaintiff in his right to vote in such primary where 
the only obstacle to be interposed is that he is a negro.

U. S. Constitution, 14th and 15th Amend­
ments.

Rev. Stat. U. S. Art. 1978 & 2004.
Guinn v. U. S., 238 U. S. 347, 59 L. Ed. 1347.
Myers v. Anderson, 238 U. S. 367, 59 L. Ed. 

1349.
Anderson v. Myers, 182 Fed. 223.
United States v. Reese, 92 U. S. 214, 23 L. Ed. 

563.
Strauder v. West Virginia, 100 U. S. 303, 25 

L. Ed. 664.
Ex Parte Siebold, 100 U. S. 371, 25 L. Ed. 

717.



20
Ex Parte Yarborough, 110 U. S. 651, 28 L.

Ed. 274.
Love v. Griffith, 266 N. S. 32.

Argument.

Section Two of the 15th amendment to the United 
States Constitution provides that Congress shall have 
the power to enforce said Article by appropriate legis­
lation.

Section 2004, United States Revised Statutes, pro­
vides :

All citizens of the United States who are 
otherwise qualified by law to vote at any elec­
tion by the people of any state, territory, district, 
county, city, parish, township, school district, mu­
nicipality, or other territorial subdivision, shall 
be entitled and allowed to vote at all such elec­
tions without distinction of race, color or pre­
vious condition of servitude; any constitution, 
law, custom, usage or regulation of any state or 
territory or by or under its authority to the con­
trary  ̂ notwithstanding.

From the opinion of the court in the Anderson- 
Myers case above, we quote the following extracts:

The common sense of the situation would 
seem to be that, the law forbidding the depriva­
tion or abridgment of the right to vote on ac­
count of race or color being the supreme lawn 
any state law commanding such deprivation or 
abridgment is nugatory and not to be obeyed by 
anyone; and anyone who does enforce it does so 
at his known peril and is made liable to an ac­
tion for damages by the simple act of enforcing 
a void lawr to the injury of the plaintiff in the 
suit, and no allegation of malice need be alleged 
or proved.



21
It was primarily the right of suffrage and its 

protection as against any discriminatory legisla­
tion of the states which was the subject matter 
dealt with by the Fifteenth Amendment and the 
Revised Statutes; and, considering the purpose of 
the law, it does not seem that any other construc­
tion can be defensible. United, States v. Reese, 
92 IT. S. 214-218, 23 L. Ed. 563.

Nothing in the way of interpretation by the 
legislative body which itself had framed the 
amendment could be more significant than this 
enactment passed by Congress immediately upon 
its adoption. I do not find in the cases cited from 
the Supreme Court anything opposed to that in­
terpretation. IT SEEMS CLEAR THAT WHEN, 
BY THE FIFTEENTH AMENDMENT, IT IS 
DECLARED THAT THE RIGHT OF CITIZENS 
OF THE UNITED STATES TO VOTE SHALL 
NOT BE DENIED OR ABRIDGED BY ANY 
STATE ON ACCOUNT OF RACE OR COLOR, 
IT MEANS WHAT CONGRESS UNDERSTOOD 
IT TO MEAN, NAMELY, THE RIGHT TO VOTE 
AT ALL PUBLIC ELECTIONS.

POINT No. 4.

When the negro, by virtue of the fifteenth amend­
ment, acquired immunity from discrimination in vot­
ing on account of his race and color, he thereby ac­
quired the right and privilege as a free man to ex­
ercise to the same extent as a white man, his un- 
trammeled choice in the selection of parties or candi­
dates; and when the legislature of a state, solely be­
cause of his race and color, undertakes by law to ex­
clude him from any party, or deny him the same lati­
tude in registering his preference as a member of any 
party of his choice that it allows to white members of 
such party, it thereby abridges his right to vote under 
the fifteenth amendment and denies to him the equal 
protection of the law guaranteed by the fourteenth 
amendment.

United States v. Reese, 92 U. S. 214, 23 L.
Ed. 563.



22
United States v. Cruthshank, 92 U. S. 542, 23 

L. Ed. 588.
Ex Parte Virginia, 100 IT. S. 339, 25 L. Ed. 

676.
Yick Wo v. Hopkins, 118 IT. S. 356, 30 L. Ed.

220.
G. C. <& S. F. Ry. Co. v. Ellis, 165 IJ. S. 150, 

41 L. Ed. 666.
Strauder v. W. Virginia, 100 IT. S. 303, 25 L. 

Ed. 664.
Connolly v. United Sewer Pipe Co., 184 IT. S. 

558, 46 L. Ed. 679.
Ex Parte Yarbrough, 110 U. S. 651, 28 L. 

Ed. 274.
McPherson v. Blacker, 146 IT. S. 1, 36 L. Ed. 

869.

Argument.

From U. S. v. Reese, page 217, we quote:
The Fifteenth Amendment does not confer the 

right of suffrage upon any one. It prevents the 
states, or the United States, however, front giv­
ing preference, in this particular, to one citizen 
of the United States over another on account of 
race, color, or previous condition of servitude. 
Before its adoption, this could be done. It was 
as much within the power of a state to exclude 
citizens of the United States from voting on ac­
count of race, etc., as it was on account of age, 
property, or education. Now it is not. If citi­
zens of one race having certain qualifications are 
permitted by law to vote, those of another hav­
ing the same qualifications must be. Previous to 
this amendment, there was no constitutional guar­
anty against this discrimination; now there is. It 
follows that the amendment has invested the citi­
zens of the United States with a new constitutional 
right which is within the protecting power of Con­
gress. That right is exemption from discrimination 
in the exercise of the elective franchise on account 
of race, color, or previous condition of servitude



23
Fyom Gulf, C. cf? S. Ry. Co. v. Ellis, 165 U. S. ISO- 

155, 41 L. Ed. 666-668, we quote:
But it is said that it is not within the scope 

of the Fourteenth Amendment to withhold from 
states the power of classification, and that, if 
the law deals alike with all of a certain class, it 
is not obnoxious to the charge of a denial of 
equal protection. While as a general proposition, 
this is undeniably true, * * * yet it is equally
true that such classification cannot be made arbi­
trary. The state may not say that all white men 
shall be subjected to the payment of the attor­
ney’s fees of parties successfully suing them, and 
all black men not. * # *

From Strcmder v. West Virginia, 100 U. S. 303, 
307, we quote:

It (The Fourteenth Amendment) ordains that 
no state shall make or enforce any laws which 
shall abridge the privileges of immunities of citi­
zens of the United States (evidently referring to 
the newly made citizens, who, being citizens of 
the United States, are declared to be also citizens 
of the state in which they reside). It ordains 
that no state shall deprive any person of life, 
liberty, or property, without due process of law, 
or deny to any person within its jurisdiction the 
equal protection of the laws. What is this but 
declaring that the law in the states shall be the 
same for the black as for the white; that all per­
sons, whether colored or white, shall stand equal 
before the laws of the states, and, in regard to 
the colored race, for whose protection the amend­
ment was primarily designed, that no discrimi­
nation shall be made against them by law because 
of their color? The words of the Amendment, it 
is true, are prohibitory, but they contain a neces­
sary implication of a positive immunity, or right, 
most valuable to the colored race, * * * the



24
right to exemption from unfriendly legislation 
against them distinctively as colored, 
exemption from legal discriminations, implying in­
feriority in civil society, lessening the security of 
their enjoyment of the rights which others enjoy, 
and discriminations which are steps toward re­
ducing them to the condition of a subject race.

Its aim was against discrimination because 
of race or color. As we have said more than 
once, its design was to protect an emancipated 
race, and to strike down all possible legal discrim­
inations against those who belong to it * # *•

The Fourteenth Amendment makes no at­
tempt to enumerate the rights it designed to pro­
tect. It speaks in general terms, and those are 
as comprehensive as possible. Its language is 
prohibitory; but every prohibition implies the ex­
istence of rights and immunities, prominent 
among which is an immunity from inequality of 
legal protection, either for life, liberty or prop­
erty. Any state action that denies this immunity 
to a colored man is in conflict with the Consti­
tution.

Ini McPherson v. Blacker, 146 U. S. 1, 39, Mr. 
Chief Justice Fuller said:

The inhibition that no state shall deprive any 
person within its jurisdiction of the equal pro­
tection of the laws was designed to prevent any 
person or class of persons from being singled 
out as a special subject for discriminating and 
hostile legislation. Citing Pembina Company v. 
Pennsylvania, 125 U. S. 181, 188.

In Yick Wo v. Hopkins, 118 U. S. 370, the court 
used language which is peculiarly appropriate here:

Sovereignty itself is, of course, not subject 
to law, for it is the author and source of law; 
but in our system, while sovereign powers are



25
delegated to the agencies of government, sover­
eignty itself remains with the people, by whom 
and for whom all government exists and acts. 
And the law is the definition and limitation of 
power. It is, indeed, quite true, that there must 
always be lodged somewhere, and in some per­
son or body, the authority of final decision; and 
in many cases of mere administration the respon­
sibility is purely political, no appeal lying ex­
cept to the ultimate tribunal of the public judg­
ment, exercised either in the pressure of opinion 
or by means of the suffrage. But the fundament­
al rights to life, liberty, and the pursuit of hap­
piness, considered as individual possessions, are 
secured by those maxims of constitutional law 
which are the monuments showing the victorious 
progress of the race in securing to men the bless­
ings of civilization under the reign of just and 
equal laws, so that, in the famous language of the 
Massachusetts Bill of Bights, the government of 
of the commonwealth “ may be a government of 
laws and not of men.”  For, the very idea that one 
man may be compelled to hold his life, or the means 
of living, or any material right essential to the 
enjoyment of life, at the mere will of another, 
seems to be intolerable in any country where free­
dom prevails, as being the essence of slavery 
itself.

There are many illustrations that might be 
given of this truth, which would make manifest 
that it was self-evident in the light of our sys­
tem of jurisprudence. The case of the political 
franchise of voting is one. Though not regarded 
strictly as a natural right, but as a privilege mere­
ly conceded by society according to its will, under 
certain conditions, nevertheless it is regarded as 
a fundamental political right, because preserva­
tive of all rights.

The Fifteenth Amendment is, in itself, self ex­
ecuting and any law or statute of any state which at-



26
tempts to take away or to abridge the right of suf­
frage to the negro, or which denies him the privilege 
of voting at any election wherein state or Federal 
officers are to be chosen, is in conflict with the Fif-. 
teenth Amendment.

Davis v. Burke, 179 U. S. 399, 45 L. Ed. 251.
Guinn v. U. 8., 238 U. S. 347-363, 59 L. Ed. 

1340-1347.
McPherson v. Blacker, 146 U. S. 1, 36 L. Ed.

869.

In the case of Davis v. Burke, supra, Justice 
Brown in defining what is meant by the self-executing 
provision of a constitution, says:

“ A constitutional provision may be said to 
be self-executing if it supplies a, sufficient rule 
by means of which the right given may be enjoyed 
and protected, or the duty imposed may be en­
forced; * * * When a constitutional provision
is complete in itself it needs no further legis­
lation to put it in force. * * * But where a
a constitution asserts a certain right, or lays 
down a certain principle of law or procedure, 
it speaks for the entire people as their supreme 
law, and is full authority for all that is done in 
pursuance of its provisions. In short, if com­
plete in itself, it executes itse lf / ’

In the Guinn case, supra, Chief Justice White in 
passing on the question of the operation and effect 
of the Fifteenth Amendment, says:

“ But it is equally beyond the possibility of 
question that the amendment in express terms 
restricts the power of the United States or the 
states to abridge or deny the right of a citizen 
of the United States to vote on account of race, 
color, or previous condition of servitude. The



27
restriction is coincident with the power and 
prevents its exertion in disregard to the com­
mand of the amendment. * * * Thus the au­
thority over suffrage which the states possess 
and the limitation which the amendment im­
poses are co-ordinate and one may not destroy 
the other without bringing about the destruc­
tion of both.”

POINT No. 5.

That Article 3107, Revised Statutes of Texas (1925), 
violates Article Six of the Constitution of the State of 
Texas.

Article Six of Texas Constitution.
Cooley Const. Lim., Sec. 599.
Black Const. Law, p. 648.
Koy v. Schneider, 218 S. W. 487.
People v. Stressheim, 240 111. 278.
Ashford v. Goodwin, 103 Tex. 491, 131 S W 

537.
Anderson v. Ashe, 130 S. W. 1046.

Argument.

We submit that Article 3107, Revised Statutes 
1925, is necessarily in conflict with Sections 1 and 2,
Article Six, of our Constitution, and being in conflict 
is therefore unconstitutional. In Koy v. Schneider, 
supra, Chief Justice Phillips, in discussing this very 
question (Primary Elections), said:

Is it not fair and reasonable, therefore, to 
assume that the Constitution was meant to in­
clude such an election and to govern it?”

“ When the broad purpose of the Constitu­
tion. in Sections 1 and 2 of Article Six is looked 
to, in my opinion mo other conclusion is possible”  
(p. 488). “ What use it is to enforce the Con­
stitution only in general elections, when, in fact,



28
the primary elections are the decisive elections 
in this state in the choosing of public officers?”  
(p. 487).

While the above is found in the dissenting opin­
ion, it is nevertheless the language and opinion of the 
chief justice of our supreme court, and if the di­
rect question at bar had been under consideration, 
we feel the court would without doubt have held Ar­
ticle 3107 in conflict with the Fourteenth and F if­
teenth Amendments, as well as Sections 1 and 2 of Ar­
ticle Six of our own constitution.

This thought and opinion of ours is fully borne 
out by the opinion of Justice Brown in the Goodwin 
case, supra, where our supreme court held “ Primary 
Elections”  were “ Elections”  within the meaning of 
our constitution. Moreover, Chief Justice Pleasants 
in Anderson v. Ashe, supra, where the direct question 
was under consideration, said:

“ We are of opinion that the word ‘ Election,’ 
as used in the section of our constitution above 
quoted should be construed to include any elec­
tion in which the public or a large portion thereof 
participate, and which is held under and regulated 
by the statutes of this state.”

In view of the above cited cases from our supreme 
court we think we are fully justified in our contention 
that a primary election is an election authorized by our 
constitution, and being an election lawful and legal, each 
and every elector who is a qualified voter under the 
Constitution of the State of Texas, regardless of race 
or color, is entitled to cast his ballot.



29
Tlie Texas Legislature frankly ignores every fun­

damental requirement of valid police regulation. It 
destroys the express and implied inhibition of class 
legislation; the recognized existence and inviolability 
of inherent rights; the underlying purpose of govern­
ment to maintain equality under the law; and the ex­
press guaranty of the right to vote.

State v. Phelps, 144 Wis. 1.

The classification made by the legislature is ar­
bitrary and despotic; contrary to reason and justice; 
is not designed in good faith to promote the public 
good; and is adopted to attain an end which itself is 
illegitimate. I f  this classification be sustained and this 
act upheld, there is nothing to prevent a state legis­
lature from excluding from a Democratic or Republi­
can primary, or from both, a Gentile, or a Jew, a Cath­
olic or a Protestant, a farmer or a blacksmith, a 
blonde or a brunette.

And, it must be remembered, this is not the effu­
sion of an assembly of ward politicians; it is the sol­
emn enactment of the legislative body of a sovereign 
state, sanctioned by its governor, made to control the 
selection of every officer who enacts, construes or ad­
ministers the laws governing four million citizens of 
these United States.

The Democratic party primary in Texas is the 
only real election in that state, and the general elec­
tion in November is nothing more than a formal rati­
fication of the results of the Democratic primary. 
The same is true to a greater or less extent in a num­
ber of other states. If such an enactment under such



30

conditions be valid, “ government of the people, for 
the people and by the people,”  was an idle dream, and 
the Fourteenth and Fifteenth Amendments to the Con­
stitution of the United States were adopted in vain.

In the primary from which Dr. Nixon was excluded, 
no race or color was barred except his. In El Paso 
thousands of Whites and of Mexicans and numbers of 
Chinese could, and did, legally cast their ballots; but 
Nixon, because of remote Ethiopian ancestry, was 
only a spectator. Think of a primary held, as in some 
states, for both Republicans and Democrats at the 
same time and place and by the same officials. All 
voters, Whites, Browns, Reds and Yellows, together 
with mongrels of varying intermediate tints, walk in 
and demand and receive the ticket they prefer to vote; 
Avhile the voter who happens to be black can only ask 
for the Republican ticket. Such a situation would be 
inconceivable but for the act of the Texas Legisla­
ture; however, if this act is to stand, such a situation 
is not a dream but a reality.

We have attempted to confine ourselves to the 
provisions of the Constitution and statutes and to the 
expressions of the courts construing them. No useful 
purpose could be served by a prolonged elaboration 
of our individual opinions. We are not in a position 
to say, as Mr. Justice Miller did, speaking for the 
court in the Yarborough ease, with reference to the 
laws protecting negroes in their exercise of franchise: 
“ But it is a waste of time to seek for specific sources 
of the power to pass these laws.”



31
We may, however, be pardoned for saying that 

the act of the legislature in question is such a flagrant, 
unjust discrimination against a citizen solely on ac- 
court of his race and color; such a brazen attempt 
to banish him from a party of his choice and brand 
him with a mark of inferiority, as an outcast unfit to 
exercise the privilege which other citizens enjoy of af­
filiating with the party of his choice and exercising the 
freedom of judgment in selection of officers under 
whom he shall serve, that we are constrained to be­
lieve this court in the exercise of the high powers re­
posed in it by the constitution and laws, will find some 
means of protecting this class of citizens against such 
ignominy and shame even though we may have failed 
in our efforts properly to point the way.

In closing allow us to further suggest that, re­
gardless of the view of the majority of this court that 
a primary election is not an election as suggested in 
Newberry ei al. v. U. S., 266 IT. S. 232; 65 L. Ed. 913: 
we feel that the prohibition placed upon the states 
by the Fifteenth Amendment is not confined to general 
elections but prohibits a discrimination which denies or 
abridges the right to VOTE on account of race, color, 
etc., and we feel this court will say that even in Dem­
ocratic primaries, “ you vote,”  and we are further 
encouraged in this view by the comment of Mr. Jus­
tice Holmes in Love v. Griffith, 266 IT. S. 32, where in 
refusing to pass upon the validity of this same stat­
ute because the question at the time it reached him 
had become moot, suggest that, if the case stood before 
the supreme court as it stood before the court of first in-



32
stance, a grave question of constitutional law would be 
presented. We hope the facts are here presented so 
this court can take full cognizance of this question 
and fix so definitely the rights of the negro that the 
step taken by the Texas Legislature will not be fol­
lowed by any other state.

We therefore request that this case be reversed 
and remanded for trial upon its merits.

Attorneys for Plaintiff in Error.







IN  THE

iintpmttp (Emtrt af tip IttxUb l̂ tatra
October Term, 1926.

No. 117.

L. A. NIXON,

against
Plaintiff-in-Err or,

O. C. HERNDON ajid CHARLES PORRAS,
Defendants-m-Error.

I n Error to the District Court of the United States 
for the W estern D istrict of Texas.

REPLY BRIEF FOR PLAINTIFF-IN-ERROR.

LOUIS MARSHALL,
MOORFIELD STOREY,
ARTHUR B. SPINGARN,
FRED C. KNOLLENBERG, 
ROBERT J. CHANNELL,

Of Counsel for Plaintiff-in-Error.

The Hecla Press, 57 Warren St., N. T. Tel. Walker 1480.





SUBJECT INDEX.

PARE
Point I—The right of a citizen to vote, regardless of 

race, color or previous condition of servitude, is 
denied and abridged by a law which forbids him, 
on account of his race and color, to vote at a 
primary election held under the laws of Texas.. 3

Point II— The statute under consideration likewise 
offends against the Fourteenth Amendment inas­
much as it is a law abridging the privileges and 
immunities of citizens of the United States, and 
because it denies to persons within its jurisdic­
tion the equal protection of the laws.............. . 27

CASES CITED.

PAGE
Ah Kow v. -Nunan (5 Sawyer 552)...............................  32
Anderson v. Ashe (66 Texas Civil App. 262; 22 S W.

1044).........................................................................  25
Ashby v. White (2 Lord Raymond L. D. 938; 3 id.

3 2 0 )..........................................................................20,21
Ashforth v. Goodwin (103 Tex. 491; 131 S. W. Rep.

5 3 5 )...........................................................................  20
Barnardiston v. Soame (2 Lev. 114, 116)...................  21
Buchanan v. Warley (245 U. S. 7 6 ).............................  31
Carter v. Texas (177 U. S. 442, 447)...........................  32
Chandler v. Neff (298 Fed. Rep. 515)................. 10,19, 20



PAGE
Ex parte Virginia (100 U. S. 339).................................  30
Ex parte Yarbrough (110 U. S. 651, 665).................. 16,17
Gibson v. Mississippi (162 U. S. 565).........................  32
Giles v. Harris (189 U. S. 498, 475)...........................  22
Green v. Sliumway (39 Y. Y. 418)..............................21,22
Guinn v. United States (238 U. S. 347).....................  17
Heath v. Rotherham (79 Y. J. Law 72; 77 Atl. 520) . 25
Hermann v. Lampe (175 Ky. 109)............... ...............  11

In re Kemmler (136 U. S. 436)..................................  30

Koy v. Schneider (110 Tex. 369).................................  12

Leonard v. Commonwealth (112 Pa. 607; 4 Atl. 220) 25
Lewis Pub. Co. v. Morgan (229 U. S. 301, 302).......... 13
Love v. Griffith (266 U. S. 3 2 ).....................................  23
Luther v. Borden (7 How. 1, 4 2 ).................................  19
McPherson v. Blacker (146 U. S. 1, 3 9 ).....................  30
Myers v. Anderson (238 U. S. 368).............................  18
Yeal v. Delaware (103 U. S. 370)............................. 17,18
Yewberry v. United States......................................... 8,25,26

Pembina Co. v. Pennsylvania (125 U. S. 181, 188) . . .  31
People v. Board of Election Comm’rs (221 111. 9) . . . .  10
People v. Chicago Election Commissioners. (221 111. 9;

77 Y. E. 321)............................................................  25
People v. Deneen (247 111. 289; 93 Y. E. 437)............ 25
People v. Haas (241 111. 575; 89 Y. E. 792)...............  25
People ex rel. Farrington v. Mensching (187 Y. Y.

1 8 ) .............................................................................  32
People v. Strassheim (240 111. 279; 88 Y. E. 821) . . .  25
Re Ah Chong (2 Fed. 733)............................................. 32
Re Tiburcio Parrott (1 Fed. 481)................................... 32
Rogers v. Alabama (192 U. S. 226, 231)...................  32
Royster Guan Co. v. Virginia (253 U. S. 412)............ 32

i i



Ill

PAGE
Smith’s Leading Cases (9th Ed., pp. 464-509) . . . . . . 21 ,  22
Spier v. Baker (120 Cal. 370; 52 Pac. 659)...............  25
State v. Breffeihl (130 La. 904)..................... .............  11
State v. Hirsch (125 Ind. 207; 24 N. E. 1062).......... 25
State ex rel. Moore v. Meharg (287 S. W. Rep. 670). .  9
Strauder v. West Virginia (100 U. S. 306).................. 28
Swafford v. Templeton (185 U. S. 487).......................  22
Truax v. Reich (239 U. S. 3 3 )....................................... 32
United States v. Reese (92 U. S. 214)...........................  15
United States v. Texas (143 U. S. 621, 640)...............  19
Virginia v. Rives (100 U. S. 313).................................  30
Wylie v. Sinkler (179 U. S. 58 ).....................................  22
Yick Wo v. Hopkins (118 U. S. 356)...........................  32



INDEX.

Statutes and Teexts.

page
Constitution of the State of Texas........ .....................  2, 4
Constitution of the U. S. (13th Amendment)................ 15
Constitution of the U. S. (14th Amendment ) ............. . 2, 3
Constitution of the U. S. (15th Amendment)

2, 3,12,14,17, 25
Constitution of the U. S. (Art, I, Sec. 4 ) ___ ,____   26
Constitution of theU. S. (Art, I, Sec. 8, Subd. 3 ) ____ 13
Constitution of theU. S. (Art. I, Sec. 8, Subd. 7 ) ____ 12
Constitution of the U. S. (19th Amendment)............ 14,15
Election Law of Texas.............. .......... .........................  8

Federal Corrupt Practices Act (Sec. 8 ) .....................  25

Merriam on Primary Elections (1908)................... 8, 9,11
Michigan Law Review (23, p. 279)........ .....................  10
New York Times (July 27, 1926)............................... . 5
New York Times (Aug. 30, 1926)........ .........................  6
New York World Almanac (1927, p. 318)................ 4,6
Texas Civil Statutes (1923, Art. 3093-A ) ...................  1



IN TI-IB

(tart nf %  1 nxUh States
October Term, 1926.

No. 117.

L. A. Nixon,
Plaintiff-in-Error,

against

C. C. Herndon and Charles Porras, 
Defendants-in-Error.

In Error to the D istrict Court op the United States 
for the W estern D istrict of Texas.

REPLY BRIEF FOR PLAINTIFF-IN-ERROR.
The State of Texas has intervened by special leave of 

this Court, in support of the constitutionality of Article 
3093-A of the Texas: Civil Statutes, enacted by its Legis­
lature in May, 1923. Permission has been granted to the 
plaintiff-in-error to reply to. the contentions of the State.

The State of Texas, with a negro population of 741,694, 
according to the census of 1920, is, therefore, seeking to 
sustain a statute which declares that “ in no event shall



a negro be eligible to participate in a Democratic primary 
election held in the State of Texas,” and that if a negro 
shall vote in a Democratic primary election his ballot shall 
be void and the election officials are required to' throw it 
out and not count it. This is in marked contrast with the 
initial paragraph of the Article, that “all qualified voters 
under the laws and constitution of the State of Texas who 
is (sic) a bona fide member of the Democratic party, shall 
be eligible to participate in any Democratic primary elec­
tion, provided such voter complies with all laws and rules 
governing party primary elections”  (Rec., p. 4).

It is conceded that the plaintiff-in-error, Dr. Nixon, 
though a, negro, is a qualified voter under the laws and 
Constitution of the State of Texas, is a bona fide mem­
ber of the Democratic party and has complied with all the 
laws and rules governing the party primary elections, and 
that the defendants, who were the inspectors at the Demo­
cratic primary held on July 26, 1924, refused to allow him 
to vote solely because lie is a negro. It is this action, 
based upon the mandate of its Legislature, which excludes 
a negro from voting at a Democratic primary election held 
in that State, which the State of Texas now seeks to up­
hold.

It is argued on behalf of the State that the right of a 
negro to' vote at a primary election does not come within 
the protective provisions of the Fourteenth and Fifteenth 
Amendments to the Constitution of the United States. 
We contend that it does, and shall now discuss the validity 
of the statute pursuant to' which the plaintiff’s vote was 
rejected, first considering the applicability of the Fif­
teenth and then that of the Fourteenth Amendment.



3

P O I N T S .

I.

The right o f a citizen to vote, regardless o f  race, 
color or previous condition o f  servitude, is denied 
and abridged by a law which forbids him, on account 
o f  his race and color, to vote at a primary election 
held under the laws o f  Texas.

(1) The Fifteenth Amendment employs the broadest 
and most comprehensive terms to express the idea that a 
citizen of the United States shall not, on account of his 
race or color, be debarred from participating in the right 
to vote. There is no* limitation or qualification as to the 
time, occasion, or manner of voting. It is not confined to 
any particular method or mechanism. It relates to the 
exercise of the right of a citizen to give expression to his 
political ideas and predilections in such a way as to make 
them effective. It forbids not only the denial of that right, 
but also its abridgment, where such denial or abridgment 
is hosed on race, color or previous condition of servitude. 
To deprive a, citizen by virtue of legislative enactment of 
the right to choose his own political party, to* compel him 
to affiliate politically with a party with whose principles 
he is not in sympathy, or to reduce his right of selection 
to a mere shadow, to an idle formality, constitutes a denial 
or abridgment of the right to vote.

(2) Whatever may have been the case in earlier days be­
fore the status of a political party had developed as it has 
to-day, when the party primary has become an essential 
element in the mechanism of voting; when it is recognized 
by statute as one of the controlling factors of that process; 
when the proceedings of the primary are regulated by law, 
and when its action is subject to judicial review, as in the 
State of Texas, it would constitute a total disregard of the 
realities to say that voting at a primary is not voting in 
the constitutional sense of the term. This is particularly



4

true in the present instance, where the Legislature of 
Texas, after declaring that all bona, fide members of the 
Democratic party who are qualified “voters” under the 
laws and Constitution of the State of Texas, have the 
right to participate in a Democratic primary election, 
ordains that “in no event” shall a negro have that right. 
There is thus a, literal denial and abridgment of the right 
of a citizen to vote, solely “ on account of his race, color 
and previous condition of servitude.”

(3) The significance of this statute as a denial and 
abridgment of the right of a negro to vote at a Democratic 
primary solely because of liis race and color, where every 
other qualified citizen who is a Democrat may vote at such 
primary, becomes apparent when one takes cognizance of 
the political conditions which now prevail in those States 
where negroes are most numerous. The New York World 
Almanac for 1927, at page 318, shows, according b> the 
census of 1920, the white and negro population, in the 
following Southern States, to have been:

White Negro
Alabama................... 1,447,032 900,652
Arkansas.................. 1,279,757 472,220
Florida...................... 638.153 329,487
Georgia..................... 1,689,114 1,206,365
Louisiana.................. 1,096,611 700,257
Mississippi............... 853,962 935,184
North Carolina . . . . 1,783,779 763,407
South Carolina........ 818,538 864,719
Texas........................ 3,918,165 741,694
Virginia..................... 1,617,909 690,017

All of the United States Senators from these several 
States are Democrats. Of the 10 members of the House 
of Representatives from Alabama, all are Democrats, as



are all the 7 members from Arkansas, the 12 members 
from Georgia, the 8 members from Louisiana, the 8 mem­
bers from Mississippi, the 10 members from North Caro­
lina, the 10 members from South Carolina, the 10 mem­
bers from Virginia, the 4 members from Florida and 17 of 
the 18 members from Texas.

The Governors of all of these States are Democrats. 
At the election for Governor of Texas held in 1926, Mr. 
Moody, then Attorney General, upon whose motion the 
right of the State of Texas to intervene in this case was 
granted, received 89,263 votes, while Haines, the Repub­
lican candidate, received 11,354 votes. It is significant, 
however, that at the Democratic primary election held in 
1926, hundreds of thousands of votes were cast, there 
being a heated contest in which there were six candidates 
for Governor, the leaders being Mr. Moody and Mrs. Fer­
guson. None of the candidates having received a majority 
of the votes received at the first voting, pursuant to the 
law of the State of Texas, another vote was taken at a 
second election, which was confined to the two candidates 
who had received the highest number of votes at the first 
primary.

By way of contrast of the vote cast at the general elec­
tion for Governor above mentioned, and the vote cast at 
the two Democratic primary elections held in 1926, let us 
call attention to the results of these primary elections. 
At the Texas Democratic primary election held on July 
24, 1926, as reported in the New York Times of July 27, 
1926, the follow votes were cast for the candidates named :

Moody...............................................  366.954
Ferguson........................................... 252,425
Davison............................................. 110,113
Zimmerman......................................  2,421
Johnston........................................... 1,830
Wilmans...........................................  1,443

Making a total vote o f .................  735,186



G

At the “run-off primary election” held on August 28, 
1926, for the choice between the two- candidates w !k> at 
the first election received the largest vote, as reported in 
the New York Times of August 30, 1926—

Mx*. Moody received.............. 458,669 votes and
Mrs. Ferguson received..........  245,097

Making a total vote o f ........ 703,766

This means that while the total vote received by the 
Democratic gubernatorial candidates at the first election 
was 735,186 and at the second was 703,766, the vote cast 
for the Democratic candidate for Governor at the general 
election was only 89,263, or a little more than 12 per cent, 
of the votes cast at the first primary election, and some­
what less than 13 per cent, of the votes cast at the “ run­
off” primary election.

For further illustration, it appears from the New York 
World Almanac that in 1920 Mr. Cox, the Democratic can­
didate for President, received in South Carolina 64,170 
and Mr. Harding 2,244. In 1926, Richards, Democratic 
candidate for Governor, was elected without opposition, 
and Smith, Democrat, was likewise elected without oppo­
sition as United States Senator. In a recent publication 
it appeared that at the election held in 1926 for members 
of the House of Representatives in South Carolina, the 
aggregate vote received by all of the Democratic candi­
dates was a little over 10,000. In most of the districts 
there was no opposition to them. Let this fact be con­
trasted with the population, white and black, of South 
Carolina, and the returns of the Democratic primary elec­
tions held in that State.

In 1906 the Democratic candidates for Governor and 
United States Senator were elected without opposition. 
That was likewise true in Mississippi, and of the election



7
held in Louisiana in 1926 for United States Senator. In 
1924 the Democratic candidate for Governor in that State 
received 66,203 votes, and the Republican candidate 1,420. 
Similar conditions obtained in other of the States.

(4) It is thus evident that in these States, including 
Texas, party lines are so drawn that a nomination in 
the Democratic primary is equivalent to an election. 
The real contest takes place in the primary or pre­
liminary election. The general election is nothing 
more than a gesture, in which but few participate, 
everything having been determined for all practical pur­
poses at the primary election; so much so that the Re­
publican party, such as there is, contents itself by occa­
sionally going through the motions of voting, so that, in 
effect, the Democratic candidates chosen at the primary 
election are unopposed at the general election. If, there­
fore, negroes, whoi are in good faith attached to the prin­
ciples of the Democratic party and are otherwise qualified, 
are prevented from voting at a Democratic primary, they 
are virtually denied the right to vote, so far as the right 
possesses any value. The mere fact that they, too; may 
go through the form of casting a vote at the general elec­
tion, in ratification of what has been done at the primary, 
is a tragic joke. Their voice is not heard. They have the 
alternative of absenting themselves from the polls or of 
voting for candidates who may be inimical to them. They 
are prevented from casting their votes in the primary for 
such candidates as may appreciate their problems and 
sympathize with them in their difficulties and to- some 
extent, at least, may desire to relieve their hardships. 
Though citizens, they are rendered negligible, because their 
votes, to all intents and purposes, have been nullified. To 
them the right of suffrage would cease to be that thing of 
substance which it was intended to be, and would be con­
verted into a useless toy, a Dead Sea apple, the lifeless



8

corpse of a constitutional right, if the legislation now un­
der consideration were to he upheld.

If the Legislature of Texas were sufficiently concerned 
in the Republican party to make it worth while, it might 
likewise provide that negroes shall not be permitted to 
vote at a Republican primary, or, so* far as that is con­
cerned, at any other primary. It is significant that the 
Election Law of Texas, while permitting other political 
primaries to be held, limits the exclusion of the negro vote 
to the Democratic primary elections, but it is conceiv­
able that it might have extended such exclusion to* all 
primaries. Then what would be the status of the negro 
voters? Instead of only the Democratic negroes, all 
negroes would be literally disfranchised.

(5) That thisi is not an imaginative fear, let us call at­
tention to what Mr. Chief Justice White said in the course 
of his opinion in Newberry v. United States (p. 267) :

“ The large number of states which at this date 
have by law established senatorial primaries shows 
the development of the movement which originated 
so long ago under the circumstances just stated. 
They serve to indicate the tenacity of the convic­
tion that the relation of the primary to the election 
is so intimate that the influence of the former is 
largely determinative of the latter. I have ap­
pended in the margin a statement from a publica­
tion on the subject, showing how well founded this 
conviction is and how it has come to pass that in 
some cases at least the result of the primary has 
been in substance to render the subsequent election 
merely perf unctory

The publication to which reference is made is Merriam 
on Primary Elections, published in 1908, where the author 
says:

“ In many western and southern states the direct 
primary method has been applied to the choice of



9

United States senators as well as to state officers. 
In the southern states, victory in such a primary, on 
the Democratic side, is practically the equivalent 
of an election, as there is hut one effective party 
in that section of the country.”

That this fact is recognized by the Courts of Texas is 
shown in State ex ret. Moore v. M eh arc/, 287 S. W. Rep. 
G70, decided by the Court of Civil Appeals of Texas on 
October 9, 1926. That was an action brought to enjoin 
the Secretary of State and other officials from placing the 
name of one McParlane as the Democratic nominee upon 
the ballots for the next election on the ground that he had 
expended more money in the primary campaign than 
allowed by statutes. After reviewing the statutes of Texas 
regulating primary elections, the Court said:

“ Other articles of the statutes clearly show that 
it was the intention of the Legislature that the 
candidate in such a race who receives a majority 
of the votes cast shall be considered the nominee 
for the office and his name shall be placed upon 
the ballots to be cast in the next general election. 
That general purpose of the statutes should not 
be disregarded unless it clearly appears from the 
provisions of article 3170, and other provisions of 
chapter 14, tit. 50, referred to above, that the candi­
date who has received a majority of the votes has 
violated the provisions of that article. Gray v. 
State, 92 Tex. 396, 49 S. W. 217; Ashford v. Good­
win, 103 Tex. 491, 131 S. W. 535, Ann. Cas. 1913A, 
699. Indeed, it is «■ 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 he elected 
at the general election. In other words, barring ’ 
certain exceptions, a primary election is equivalent 
to a- general election.”

Professor Merriam in his book on Primary Elections, 
which was published in 1908, since which time the ideas



10
by him expressed have been greatly extended, further says 
at page 116:

“ 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 regulation and control. The 
element of public concern in the making of nomi­
nations has been strongly emphasized, and the right 
of the Legislature to make reasonable regulations to 
protect and preserve the purity and honesty of elec­
tions has been vigorously asserted.”

In 23 Michigan Law Review 279, the decision in Chandler 
v. Neff, 298 Fed. Rep. 515, on which the State relies, re­
ceived elaborate comment in an able article written by 
Meyer M. Brown, Esq. It will be found worthy of con­
sideration in its entirety. The following passages are 
especially in point:

“What in their nature is peculiar to primary elec­
tions that should differentiate them from the pub­
lic elections and exempt them from the operation 
of the Constitution? It has been pointed out that 
the right to choose candidates for public office 
whose names shall appear on the official ballot is 
as valuable as the right to vote for them after they 
are chosen, and is of precisely the same nature. 
People V. Board of Election. Comm’rs, 221 111. 9. 
The primary election has the effect of selecting from 
the large possible field of choice for the office a 
few candidates whose names are to be printed on 
the ballot at the general election. This final elec­
tion is a further, but similar, limitation; it is the 
selection of one from the few. That the second 
selection should be called an election while the 
first should not, would seem like an unreasonable 
distinction. In accord with this view is the hold­
ing that since, under the primary system, there is 
scarcely a possibility that any person will or can 
be elected to office unless he shall be chosen at a



1 1

primary election, a primary election must be re­
garded as an integral part of the process of choos­
ing public officers and as an election within the 
meaning of the constitutional provisions defining 
the rights of voters. People V. Board of Election 
Commit's, supra. * * * Modern primary elections 
have not only the same essential nature as. the gen­
eral elections, as shown above, but the machinery 
and details of conducting them are generally the 
same in both cases. Primary elections are held at 
the same public polling places as the general elec­
tions, with the same election officials in charge. 
The ballots which are printed and paid for by the 
state are counted by government election officials, 
and the names of the winners are printed on the 
ballots at the general election. In case of a pri­
mary election dispute, recourse is had to the same 
election commissioners or judges of election as in 
the case of general elections. Not only is the ex­
pense of holding primaries paid by the government 
out of the general taxes, but they are completely 
controlled and regulated by the state, rather than 
by party leaders or bosses as was the case under 
the ‘King Caucus’ regime, the convention system 
and the early form of primary. Hermann v. Larnpe, 
175 Ky. 109'. The modern primary election is thus 
seen to be on a part with general elections in re­
gard to their actual conduct, public nature and 
governmental control. * * *

While the general elections are usually thought 
of as being of more importance than the primaries, 
the contrary is often true, for in many states the 
voting strength and solidarity of some one party is 
such that the contest for nomination of candidates 
is practically equivalent to an election. State V. 
Breffeihl, 180 La. 904. In Texas, victory in a pri­
mary, on the Democratic side, means practically 
certain election. Merriam, p. 84. ‘No court can 
blind its eyes to this universally known fact. * * * 
Of what use is it to enforce the Constitution only 
in general elections, when, in fact, the primary elec­
tions are the decisive elections in this State in the



1 2

choosing of public officers.’ Cli. J. Phillips, in 
Koy v. Schneider, 110 Tex. 369.”

(6) But it is argued that the Fifteenth Amendment does 
not expressly refer to voting at primaries. That is true. It 
does not descend to particulars. It deals with the all- 
inclusive subject, “ the right to vote,” and, unless intel­
lectual blindness were to be attributed to the earnest and 
high-minded statesmen who sponsored this Amendment, 
that right must be deemed to relate to> any form of voting 
and for any purpose and to any part of the process 
whereby what is intended to be accomplished by voting 
is brought about. There is certainly nothing in this 
Amendment which declares that voting at primaries is to 
be excepted from its scope.

It is said that in 1870, when the Fifteenth Amendment 
was adopted, there were no primary elections and that, 
therefore, the right to vote at a primary election could not 
have been contemplated. We reply that in 1870 the so- 
called Australian ballot was unknown. Voting machines 
had not been invented, and other possible methods of vot­
ing than the primitive methods then in vogue, e. g., voting 
viva voce;, or by a show of hands., or by a ballot thrust into 
the hands of the voter by the poll workers, had not been 
conceived. Neither had the initiative, the referendum, the 
recall, been introduced into our political vocabulary. Can 
anybody have the hardihood to claim that for these rea­
sons the newer methods and purposes of voting are not 
covered by the Constitution? Its language is adequate to 
include any act or conception or purpose which relates to 
or substantially affectsi the free exercise in its essence of 
the right to vote.

When, by Article I, Section 8, subdivision 3, of the Con­
stitution, in seven words, Congress was given “the power 
to regulate commerce among the several States,” our in­
strumentalities of commerce were limited to stage coaches



13

and wagons on land and to sloops, rafts and rowboats on 
the water. The articles which then came within the scope 
of commerce were pitifully few, compared with its present 
vast expansion. But this simple phrase sufficed to include, 
as they were from time to time devised, asi instrumen­
talities of commerce, steamboats, railroads, aeroplanes*, 
the telegraph, the telephone, and the radio. They likewise 
became the authority for the creation of the Interstate 
Commerce Commission, the Federal Trade Commission, 
the enactment of the Employers’ Liability Act, and numer­
ous other far-reaching agencies for the regulation of com­
merce.

Subdivision 7 of the same section empowered Congress 
“ to establish post-offices and post-roads.” Yet who in 1787 
would have conceived the possibility, latent in these words, 
in reference to which Mr. Chief Justice White said, in 
Lewis Publishing Go. v. Morgan, 229 U. S. 301, 302:

“And the wise combination of limitation with 
flexible and fecund adaptability of the simple yet 
comprehensive provisions of the Constitution are so 
aptly illustrated by a statement in the argument of 
the Government as to the development of the postal 
system, that we insert it as follows:

‘Under that six-word grant of power the great 
postal system of this country lias been built up, 
involving an annual revenue and expenditure of 
over five hundred millions of dollars, the mainte­
nance of 60,000 post offices., with hundreds of thou­
sands of employes, the carriage of more than fifteen 
billions of pieces of mail matter per year, weighing 
over two billion of pounds, the incorporation of rail­
roads, the establishment of rural free delivery sys­
tem, the money-order system, by which more than 
a half a billion of dollars a year is transmitted from 
person to person, the postal savings bank, the par­
cels post, an aeroplane mail service, the suppression 
of lotteries, and a most efficient suppression of



14
fraudulent and criminal schemes impossible to be 
reached in any other way.’ ”

These illustrations relate only to- material things. In 
so- far as they are concerned, the elasticity of the constitu­
tional language has been marvelously vindicated. Is it 
possible that the language of the same Constitution relat­
ing to human rights, and intended to bring about the 
realization of the noble conception of human equality and 
the prevention of hateful discrimination, shall be crip­
pled, hampered and deprived of its very life by a narrow 
and technical interpretation, which would defeat its un­
derlying purpose? Is it possible that the expression of an 
exalted human purpose shall after half a century be made 
meaningless by the employment of an artificial mechanism?

There is still another illustration which adds to the 
strength of our contention. It is afforded by the Nine­
teenth Amendment, Its form and language are identical 
with the terms of the Fifteenth Amendment until we reach 
the last words. Both begin:

“ The rights of citizens of the United States to 
vote shall not be denied or abridged by the United 
States or by any State on account of * *

The Fifteenth Amendment continues with the words 
“ race, color, or previous condition of servitude.” The 
Nineteenth Amendment continues with the single word 
“sex.”

Nobody to-day pretends that a woman may not take 
part in a primary election without further authority than 
that conferred by the Nineteenth Amendment, so long as 
she possesses the other qualifications requisite to the exer­
cise of the right of suffrage. In other words, she may not 
be prevented from voting at a primary election on account 
of her sex. Of course, under the Texas statute, if she is a



15

negro, her sex would not save her from its discriminatory 
purpose. It is true that when the Nineteenth Amendment 
came into force on August 26, 1920, voting at primary 
elections, unknown fifty years before, had become familiar. 
Yet, would it not be an absurdity to say that in 1920 the 
right to vote, so far as it related to women, included the 
right of voting at a primary election, whereas at the same 
time the right of a negro to vote at a primary election did 
not exist because when the Fifteenth Amendment was 
adopted there were no primary elections? The provisions 
of the Nineteenth Amendment might very well have been 
included by an amendment to Article 15 of the Amend­
ments to the Constitution, so that the article might have 
read: “The rights of citizens of the United States to vote 
shall not be denied or abridged by the United States or by 
any State on account of sex, race, color or previous condi­
tion of servitude.” Could it then have been contended 
that under such a provision of the Constitution the right 
of women to vote at primaries could not be denied or 
abridged, but that the right of negroes to vote could never­
theless be denied and abridged, because the same words 
had two different meanings due to the fact that they origi­
nated in two different periods of our social development?

(7) The history of the Thirteenth, Fourteenth and Fif­
teenth Amendmentsi discloses; that it was the purpose of the 
framers; to make them self-executing from the moment of 
their adoption, and to confer upon the negroes ipso facto 
political equality.

In United States v. Reese, 92 U. S. 214, Mr. Justice 
Hunt, although his was a dissenting opinion, made the 
statement which has never been questioned:

“The existence of a large colored population in 
the Southern States, lately slaves and necessarily 
ignorant, was a disturbing element in our affairs.



16
It could not be overlooked. It confronted us always 
and everywhere. Congress determined to meet the 
emergency by creating a political equality, by con­
ferring upon the freedman all the political rights 
possessed by the white inhabitants of the State. It 
was believed that the newly enfranchised people 
could be most effectually secured in the protection 
of their rights of life, liberty, and the pursuit of 
happiness, by giving to them that greatest of rights 
among freemen—the ballot. Hence the Fifteenth 
Amendment was passed by Congress, and adopted 
by the States. The power of any State to deprive 
a citizen of the right to vote on account of race, 
color, or previous condition of servitude, or to im­
pede or to obstruct such right on that account, was 
expressly negatived. It was declared that this right 
of the citizen should not be thus denied or abridged.

The persons affected were citizens of the United 
States; the subject was the right of these persons 
to vote, not at specified elections or for specified 
officers, not for Federal officers or for State officers, 
but the right to vote in its broadest terms.”

In Ex parte Yarbrough, 110 U. S. 651, 665, Mr. Justice 
Miller said:

“While it is quite true, as was said in this court 
in United States v. Reese, 92 U. S. 214, that this 
article gives no affirmative right to the colored man 
to vote, and is designed primarily to prevent dis­
crimination against him whenever the right to vote 
may be granted to others, it is easy to see that 
under some circumstances it may operate as the 
immediate source of a right to vote. In all cases 
where the former slave-holding States had not re­
moved from their Constitutions the words ‘white 
man’ as a qualification for voting, this provision 
did, in effect, confer on him the right to vote, be­
cause, being paramount to the State law, and a part 
of the State law, it annulled the discriminating 
word white, and thus left him in the enjoyment of 
the same right as white persons. And such would



17

be the effect of any future constitutional provision 
of a> State which should give the right of voting 
exclusively to white people, whether they be men 
or women. Neal v. Delaware, 103 U. S. 370.

In such cases this Fifteenth article of amendment 
does, proprio vigore, substantially confer on the 
negro the right to vote, and Congress has the power 
to protect and enforce that right.

In the case of United States v. Reese, so much 
relied on by counsel, this court said in regard to 
the Fifteenth Amendment, that ‘it lias invested the 
citizens of the United States with a new constitu­
tional right which is within the protecting power of 
Congress. That right is an exemption from dis­
crimination in the exercise of the elective franchise 
on account of race, color, or previous condition of 
servitude.' This new constitutional right was 
mainly designed for citizens of African descent. 
The principle, however, that the protection of the 
exercise of this right is within the power of Con­
gress, is as necessary to the right of other citizens 
to vote as to the colored citizen, and to the right to 
vote in general as to the right to be protected against 
discrimination.”

In Guinn v. United States, 238 U. S. 317, Mr. Chief Jus­
tice White, considering the Fifteenth Amendment, said 
at page 362:

“While in the true sense, therefore, the Amend­
ment gives no right of suffrage, it was long ago 
recognized that in operation its prohibition might 
measurably have that effect; that is to say, that as 
the command of the Amendment was self-executing 
and reached without legislative action the condi­
tions! of discrimination against which it was aimed, 
the result might arise that as a consequence of the 
striking down of a discriminating clause a right of 
suffrage would be enjoyed by reason of the generic 
character of the provision which would remain after 
the discrimination was stricken out. Ex parte Yar­
brough, 110 U. S. 651; Neal v. Delaware, 103 U. S.



18

370. A familiar illustration of this doctrine re­
sulted from the effect of the adoption of the Amend­
ment on state constitutions in which at the time of 
the adoption of the Amendment the right of suffrage 
was conferred on all white male citizens, since by 
the inherent power of the Amendment the word 
white disappeared and therefore all male citizens 
without discrimination on account of race, color or 
previous condition of servitude came under the 
generic grant of suffrage made by the State.

With these principles before us how can there be 
room for any serious dispute concerning the repug­
nancy of the standard based upon January 1, 1866 
(a date wiiich preceded the adoption of the Fif­
teenth Amendment), if the suffrage provision fixing 
that standard is susceptible of the significance 
which the Government attributes to it? Indeed, 
there seems no escape from the conclusion that to 
hold that there was even possibility for dispute on 
the subject would be but to declare the Fifteenth 
Amendment not only had not the self-executing 
power which it has been recognized to have from 
the beginning, but that its provisions were wholly 
inoperative because susceptible of being rendered 
inapplicable by mere forms of expression embodying 
no exercise of judgment and resting upon no dis­
cernible reason other than the purpose to disregard 
the prohibitions of the Amendment by creating a 
standard of voting which on its face was in sub­
stance but a> revitalization of conditions which when 
they prevailed in the past had been destroyed by the 
self-operative force of the Amendment

In Myers v. Anderson, 238 U. S. 368, it was held that 
while the Fifteenth Amendment does not confer the right 
of suffrage on any class, it prohibits the States from de­
priving any person of the right of suffrage whether for 
Federal, State or municipal elections. A State may not 
establish a standard existing prior to the adoption of that 
Amendment and which was rendered illegal thereby. In



19

that case counsel had argued with great seriousness that 
the words “ right to vote” as used in the statutes or con­
stitutions usually meant the right to vote at elections of a 
general public character, and not at municipal elections, 
and that they did not in any event mean or refer' to the 
right to vote in corporate bodies created solely by legis­
lative will, and wherein such right is dependent altogether 
upon legislative discretion, as in municipal corporations. 
That contention was rejected.

(3) It has also been argued that the question here in­
volved is a political question, and on the authority of 
Chandler v. Neff , 298 Fed. Rep. 515, it is claimed that such 
questions are not within the province of the judiciary.

Political questions which are not within the province 
of the judiciary, where the power to deal with them has not 
been conferred by express constitutional or statutory pro­
visions, are not such as relate to the maintenance of civil, 
social or even political rights conferred on the citizen by 
the Constitution or a statute, or even such as exist at 
common law.

The phrase “political questions” is ordinarily used to 
designate such questions as lie outside of the scope of 
the judicial power, as for instance, where the issue arises 
as to which of two rival governments is legitimate. This 
is illustrated by Luther v. Borden, 7 How. 1, 42. Such 
questions also arise where the Federal Government has 
recognized a state or foreign government, or a sovereign 
de jure or de facto of a particular territory. Whether a 
state of war exists; or what is the political status of a 
state of the Union; or whether the government of a State 
has ceased to be republican in form by reason of the 
adoption of the Initiative and Referendum are political 
questions. But the determination of a boundary between 
two states presents a judicial and not a political ques­
tion ( U. 8. v. Texas, 143 U. S. 621, 640 ).



2 0

So, too, the questions of whether an officer elected by 
the people or appointed by the Governor has the qualifica­
tions required by law, or where a county seat is, or 
whether a law creating a new county violates a provision 
of the Constitution, which limits the area of a county to be 
erected or of the county from which the territory is taken; 
or whether a majority in fact of the votes cast on a propo­
sition is by fraud converted into a minority on the face 
of the election returns, are judicial.

By the Election Laws of Texas the proceedings of 
primary elections are subject to judicial review (Ashforth 
v. Goodwin., 103 Tex. 491, 131 S. W. Rep. 535).

The present case does not involve a political question in 
the sense in which that phrase is properly used. It doubt­
less relates to' a political right—the exercise of suffrage. 
But in the same sense freedom of speech, and of the press, 
of the right of free exercise of religion, the right of peace­
able assembly, of petition to the Government for redress of 
grievances, are political rights, as is the right to life, lib­
erty and property and of being protected against the denial 
of the equal protection of the laws. A citizen who is de­
prived of these rights may seek redress for the injury 
inflicted and protection against injury threatened in the 
Courts. The books are full of precedents in which the 
Courts have intervened on behalf of those who complain 
of the invasion of these precious rights. This is especially 
true where redress is sought in an action at law, as in the 
present case. Chandler v. Neff was a suit in equity.

Even at common law the right to maintain an action 
at law against an election returning officer for refusing to 
recognize an elector’s right to vote was enforced in the 
great case of Ashby v. White, 2 Lord Raymond Rep. 938, 
3 id. 320; 1 Smith’s Leading Cases, 9th Ed., pp. 464-509. 
There Ashby, who wras a qualified voter of the Borough of 
Aylesbury, offered his vote at an election for members of 
Parliament. The defendants refused to permit him to



2 1

vote, and two burgesses of that borough were elected to 
Parliament, “he, the said Matthias Ashby, being excluded 
as before set forth, without any vote of him, the said 
Matthias Ashby * * * to the enervation, of the aforesaid 
'privilege of him, the said Matthias Ashby.” Justices 
Gould, Powys and Powell held that the action was not 
maintainable. Chief Justice Holt held that it was. The 
case was then taken before the House of Lords, where a 
judgment was given for the plaintiff by fifty Lords against 
sixteen. When judgment was thereafter rendered for the 
plaintiff by Chief Justice Holt, he closed his remarks with 
the impressive statement:

“Although this matter relates to the parliament, 
yet it is an injury precedaneous to the parliament, 
as my Lord Hale said in the case of Barnardiston 
v. Soame, 2 Lev. 114, 116. The parliament cannot 
judge of this injury, nor give damage to the plain­
tiff for it: they cannot make him a recompense. 
Let all people come in, and vote fairly: it is to sup­
port one or the other party to deny any man’s vote. 
By my consent, if such an action comes to be tried 
before me, I will direct the jury to make him pay 
well for it; it is denying him his English right: 
and if this action be not allowed, a man may be 
forever deprived of it. It is a, great privilege to 
choose such persons as are to hind a man’s life and 
property by the laws they make ”

The subsequent history of Ashby v. White constitutes 
an important chapter in English constitutional history. 
A furious controversy was waged between the Houses of 
Lords and Commons, as is set forth on page 506 of the 
note to Ashby v. White in Smithes Leading Cases and in 
Volume 2 of Hallam’s Constitutional History of England 
(6th Ed.), 436-439, 444.

A similar precedent is afforded by the case of Green v. 
B'humway, 39 N. Y. 418, where the inspectors of an elec­
tion held for the purpose of choosing delegates to a con­



2 2

stitutional convention refused to accept the vote of an 
elector who declined to take the “test oath” prescribed by 
the act relating to the election of such delegates and 
which was not applicable to voters at a general election. 
The provision of the statute requiring such oath was held 
to be unconstitutional, and, consequently, the rejection of 
the vote was held to- constitute a cause of action inde­
pendently of any statutory authority.

In Wylie v. Kinkier, 179i U. S. 58, it was: held that the 
Circuit Court of the United States had jurisdiction of an 
action brought against election officers of the state to re­
cover damages for refusing the plaintiffs vote for a mem­
ber of Congress; and in Swafford v. Templeton, 185 U. S. 
487, there was a similar ruling.

Referring to these cases in his dissenting opinion in 
Giles v. Harris, 189 U. S. 498, Mr. Justice Harlan said 
that they “recognized that the deprivation of a man’s 
political rights (those cases had reference to the elective 
franchise) may properly be alleged to- have the required 
value in money” within the jurisdiction of the require­
ment.

Giles v. Harris, 189 U. S. 475, in no way conflicts with 
our contention, that being a suit in equity to compel the 
Board of Registrars to enroll the names of themselves and 
other negroes upon the voting lists of the county in which 
they resided. The decision was based upon the ground 
that it was impossible for the Court to grant the equitable 
relief which was asked. The complaint was characterized 
as “a bill for a mere declaration in the air.”  The relief 
asked for the right of registration under what was de­
clared to be a void instrument. It was also held that a 
court of equity could not take jurisdiction because it could 
do nothing to enforce any order that it might make. In 
the course of his opinion Mr. Justice Holmes said, on the 
authority of Wylie v. Kinkier and Swafford v. Templeton:



23

“We have recognized, too, that the deprivation 
of a man’s political and social rights properly 
may be alleged to involve damage to that amount, 
capable of estimation in money.”

In the present case the action is one at law for damages 
occasioned by the deprivation of the plaintiff of his politi­
cal and social rights.

Love v. Griffith, 266 U. S. 32, was likewise a bill in equity 
filed in February, 1921, by the plaintiffs, who were quali­
fied electors of the Democratic political faith, to enjoin 
the City Democratic Executive Committee of Houston, 
Texas, from enforcing a rule that negroes could not be 
allowed to vote in the Democratic city primary election 
to be held on February 9, 1921. The State Court in the 
first instance dismissed the bill. On appeal to the Court 
of Civil Appeals of the State the ease came up for hearing 
months after the election, and it was decided that the 
cause of action had ceased to exist and that therefore the 
appeal would not be entertained. In that situation the 
case came before this Court. Mr. Justice Holmes said:

“ 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 promul­
gated by the Democratic Executive Committee was 
for a single election only that had taken place long 
before the decision of the Appellate Court. Ho con­
stitutional rights of the plaintiffs in error were in­
fringed 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.”

As has been already pointed out, the present action is 
one at law for damages, and therefore does not come within



the ruling made in the case cited. Moreover, it is signifi­
cant that that case arose two years before the enactment 
of the statute which we are now attacking. It merely 
involved a rule of the Democratic Executive Committee of 
Houston. Here, we are confronted by an Act of the Legis­
lature sought to be enforced by the State of Texas and 
directed against a component part of the citizenry of the 
State. We are contending against the validity of the leg­
islation of the State and not merely against the action of 
a Democratic executive committee taken pursuant to that 
legislation. From this statement we do not wish it to be 
inferred that we entertain any doubt as to the right of 
a negro citizen otherwise qualified to vote to attack the 
validity of the action of such a committee excluding him 
from voting on account of his race or color, even in the 
absence of legislation. It is likewise significant that in 
the case just cited this Court recognized that if the case 
stood here as it did before the court of first instance, it 
would “present a grave question of constitutional law.” 9

(9) The stress of the argument of the State rests on 
the proposition that the primary of a political party is not 
an election within the meaning of the Constitution of the 
United States, and that is stated to be “ the crux of the 
whole case.”

It has, of course, been observed that we have not referred 
to any constitutional provision which mentions the word 
“election.” Our reliance is upon the Fifteenth Amend­
ment, which relates to “ the right to vote” and which for­
bids the denial or abridgment of that right. We are not, 
therefore, concerned with the decisions that have been 
cited at pages) 9 to 13 of the State’s brief. In none of 
them is there any question as to the right to vote. Even 
as to the propositions discussed in those cases there is a



25

contrariety of opinion in the authorities. The following 
are opposed to those cited:

People v. Chicago Election Commissioners, 221
111. 9; 77 N. E. 321;

People v. Strassheim, 210 111. 279; 88 N. E. 821;
People v. Haas, 211 111. 575; 89 N. E. 792;
People v. Deneen, 217 111. 289; 93 N. E. 137;
State v. Hirsch, 125 Ind. 207; 21 N. E. 1062;
Heath v. Rotherham, 79 N. J. Law 72; 77 Atl. 

520;
Spier v. Baker, 120 Cal. 370; 52 Pac. 659;
Leonard V. Commonwealth, 112 Pa. 607; 1 Atl.

220;
Anderson v. Ashe, 66 Texas Civil App. 262; 22 

S. W. 1011.

The State’s principal reliance is on the decision in New­
berry v. United States, 256 U. S. 232, which involved the 
constitutionality of Section 8 of the Federal Corrupt Prac­
tices Act, which undertook to limit the amount of money 
which the candidates for Representative in Congress or 
for United States Senator might contribute or cause to be 
contributed in procuring his nomination or election. In 
so- far as it applied to a primary election of candidates 
for a seat in the Senate, the Fifteenth Amendment was 
in no way involved.

The meaning of the phrase “the right to vote” was not 
and could not have been considered, since there had been no 
denial or an abridgment of that right on account of race, 
color, previous condition of servitude, or of sex. The sole 
constitutional question involved concerned the interpreta­
tion to be given to Article I, Section 1, of the Constitution, 
which provides:

“The times, places and manner of holding elec­
tions for senators and representatives, shall be pre­



26

scribed in each State by the Legislature thereof; 
but the Congress may at any time by law make or 
alter such regulations, except as to the places of 
choosing senators.”

The question, therefore, was whether the limited right 
to deal with “the times, places and manner of holding 
elections” involved the right to regulate the use of money 
in connection with the primary election of candidates for 
the Senate and House of Representatives.

It was held that an undefined power in Congress over 
elections of Senators and Representatives not derived 
from Article I, Section 4, could not be inferred from the 
fact that the offices were created by the Constitution or 
by assuming that the Government must be free from any 
control by the States over matters affecting the choice 
of its officers. It was further held that the elections 
within the original intendment of Section 4 of Arti­
cle I were those wherein Senators should be chosen by 
legislatures and Representatives by voters “possessing the 
qualifications requisite for electors of the most numerous 
branch of the state legislature.”

It was likewise held that the Seventeenth Amendment 
did not modify Article I, Section 4, which was the source 
of Congressional power to regulate the times, places and 
manner of holding elections; and, finally, that the power to 
control party primaries for designating candidates for the 
Senate was not “ within the grant of power to regulate the 
manner of holding elections.”

The “right to vote” is infinitely more comprehensive in 
its meaning, scope and operation than is the reference to 
the “manner of holding elections for senators and repre­
sentatives.,” which was under consideration in Newberry
V. United States.

Moreover, in that case Justices McReynolds, Holmes, 
Day and Vandevanter voted for reversal on the constitu­



27

tional ground, while Mr. Chief Justice White, differing on 
the constitutional question, voted for a reversal and a new 
trial because of an error in the charge to the jury, and Jus­
tices Pitney, Brandeis and Clarke, likewise finding error 
in the instructions to the jury, were of the opinion that 
the Act itself was valid. Mr. Justice McKenna concurred 
in the opinion of Mr. Justice McReynolds “as applied to 
the statute under consideration, which was enacted prior 
to the Seventeenth Amendment, hut reserved the question 
of the power of Congress under that Amendment.”

In view of this divergence of opinion with respect to the 
provision of Section 4 of Article I of the Constitution, 
it can scarcely he said that it has any direct bearing on 
the questions here involved arising under the Fourteenth 
and Fifteenth Amendments.

IL

The statute under consideration likewise offends 
against the Fourteenth Amendment inasmuch as it is 
a law abridging the privileges and immunities of citi­
zens of the United States, and because it denies to 
persons within its jurisdiction the equal protection 
of the laws.

This statute takes from negroes who are qualified as 
voters under the laws and Constitution of the State of 
Texas, and who are bona fide members of the Democratic 
party, the right to participate in the Democratic primary 
election which is conferred on all other persons coming 
within that definition. It likewise classifies qualified 
voters who are bona fide members of the Democratic party 
by permitting all persons who are white to vote at Demo­
cratic primary elections, and prohibits all who are black 
from so voting.



28

Independently, therefore, of the Fifteenth Amendment, 
we contend that this statute is a violation of the Four­
teenth Amendment, which brings us to a consideration 
of the scope of the latter amendment as interpreted by this 
Court. In reference to it Mr. Justice Strong said in 
Strauder v. West Virginia, 100 U. S. 306, where a statute 
in effect singled out and denied to colored citizens the 
right and privilege of participating in the administration 
of the law as jurors because of their color, though qualified 
in all other respects:

“This is one of a series of constitutional provi­
sions having a common purpose; namely, securing 
to a race recently emancipated, a race that through 
many generations had been held in slavery, all the 
civil rights that the superior race enjoy. The true 
spirit and meaning of the amendments, as we said 
in the Slaughter-IIouse Gases (16 Wall. 36), cannot 
be understood without keeping in view the history 
of the times when they were adopted, and the gen­
eral objects they plainly sought to accomplish. At 
the time when they were incorporated into the Con­
stitution, it required little knowledge of human 
nature to anticipate that those who had long been 
regarded as an inferior and subject race would, 
when suddenly raised to the rank of citizenship, be 
looked upon with jealousy and positive dislike, and 
that State laws might be enacted or enforced to 
perpetuate the distinctions that had before existed. 
Discriminations against them had been habitual. It 
was well known that in some States laws making 
such discriminations then existed, and others might 
wrell be expected. * * * It wras in view of these 
considerations that the Fourteenth Amendment was 
framed and adopted. It was designed to assure to 
the colored race the enjoyment of all the civil rights 
that under the law are enjoyed by white persons, 
and to give to that race the protection of the general 
government, in that enjoyment, whenever it should 
be denied by the States. It not only gave citizenship



2 9

and the privileges of citizenship to persons of color, 
but it denied to any State the power to withhold 
from them the equal protection of the laws, and 
authorized Congress to enforce its provisions by ap­
propriate legislation. To quote the language used 
by us in the Slaughter-House Cases, ‘No one can 
fail to be impressed with the one pervading purpose 
found in all the amendments, lying at the founda­
tion of each, and without which none of them would 
have been suggested—we mean the freedom of the 
slave race, the security and firm establishment of 
that freedom, and the protection of the newly made 
freeman and citizen from the oppressions of those 
who had formerly exercised unlimited dominion over 
them.’ ”

The opinion then discusses the terms of the Fourteenth 
Amendment and the necessity of construing it liberally 
to carry out the purposes of the framers, and then proceeds 
to consider the equal protection clause:

“What is this but declaring that the law in the 
States shall be the same for the black as for the 
white; that all persons, whether colored or white, 
shall stand equal before the laws of the States, and, 
in regard to the colored race, for whose protection 
the amendment was primarily designed, that no dis­
crimination shall be made against them by law be­
cause of their color? The words of the amendment, 
it is true, are prohibitory, but they contain a neces­
sary implication of a positive immunity, or right, 
most valuable to the colored race—the right to ex­
emption from, unfriendly legislation against them 
distinctively as colored—exemption from legal dis­
criminations, implying inferiority in civil society, 
lessening the security of their enjoyment of the 
rights which others enjoy, and discriminations 
which are steps reducing them to the condition of 
a subject race.

That the West Virginia statute respecting juries 
—the statute that controlled the selection of the



grand and petit jury in the case of the plaintiff in 
error—is such a discrimination ought not to be 
doubted. Nor would it be if the persons excluded by 
it were white men. If in those States where the 
colored people constitute a majority of the entire 
population a law should be enacted excluding all 
white men from jury seiwice, thus denying to them 
the privilege of participating equally with the blacks 
in the administration of justice, we apprehend no 
one would be heard to claim that it would not be a 
denial to white men of the equal protection of the 
laws. Nor if a law should be passed excluding all 
naturalized Celtic Irishmen, would there be any 
doubt of its inconsistency with the spirit of the 
amendment. The very fact that colored people are 
singled out and expressly denied by a\ statute all 
right to participate in the administration of the 
law, as jurors, because of their color, though they 
are citizens, and may he in other respects fully quali­
fied, is practically a brand upon them, affixed by the 
law, an assertion of their inferiority, and a stimu­
lant to that race prejudice which is an impediment 
to securing to individuals of the race that equal jus­
tice which the law aims to secure to all others

To the same effect are opinions in
Virginia• v. Rives, 100 U. S. 313, and
Ex parte Virginia, 100 U. S. 339.

In McPherson v. Blacker, 146 U. S. 1, 39, it is stated:
“ The object of the Fourteenth Amendment in re­

spect of citizenship was to preserve equality of 
rights and to prevent discrimination as between citi­
zens, but not to radically change the whole theory 
of the relations of the state and Federal govern­
ments to each other, and of both governments to 
the people. In re Kemmler, 136 U. S. 436.

The inhibition that no State shall deprive any 
person witliin its jurisdiction of the equal protec­
tion of the laws was designed to prevent any per­



sons or class of persons from being singled out as 
a special subject for discriminating and hostile leg­
islation. Pembina Company v. Pennsylvania, 125 
U. S. 181, 188.”

In Buchanan v. Warley, 245 U. S. 76 (the Louisville
‘gregation Case), Mr. Justice Day said:

“ The effect of these Amendments was first dealt 
with by this court in The Slaughter liou-se Cases, 
16 Wall. 36. The reasons for the adoption of the 
Amendments were elaborately considered by a court 
familiar with the times in which the necessity for 
the Amendments arose and with the circumstances 
which impelled their adoption. In that case Mr. 
Justice Miller, who spoke for the majority, pointed 
out that the colored race, having been freed from 
slavery by the Thirteenth Amendment, was raised 
to the dignity of citizenship and equality of civil 
rights by the Fourteenth Amendment, and the 
States were prohibited from abridging the privileges 
and immunities of such citizens, or depriving any 
person of life, liberty, or property without due 
process of law. While a principal purpose of the 
latter Amendment was to protect persons of color, 
the broad language used was deemed sufficient to 
protect all persons, white or black, against discrim­
inatory legislation by the States. This is now the 
settled law. In many of the cases since arising the 
question of color has not been involved and the 
cases have been decided upon alleged violations of 
civil or property rights irrespective of the race or 
color of the complainant. In The Slaughter House 
Cases it was recognized that the chief inducement to 
the passage of the Amendment was the desire to ex­
tend federal protection to the recently emancipated 
race from unfriendly and discriminating legislation 
by the States.”



32

See also :

Gibson V. Mississippi, 162 U. S. 565;
Carter V. Terns, 177 U. S. 442, 447;
Rogers V. Alabama, 192 U. S. 226, 231.

A mere reference to Yick Wo v. Hopkins, 118 U. S. 356, 
and to the classic opinion of Mr. Justice Matthews in that 
case will suffice for the purposes of this argument, although 
in the ordinance there in question there was not the brutal 
frankness which characterizes the legislation now under 
consideration which expressly discriminates against the 
negro. In the case cited, without reference to the fact 
that it was intended to discriminate against Chinese laun- 
drymen, they were not named in the ordinance, although 
in its operation, as well as in its purpose, it was designed 
to differentiate between them because of their race and 
others who conducted laundries.

See also:
Truax v. Reich, 239 U. S. 33;
Ah Kow v. Hunan, 5 Sawyer 552;
Re Tiburcio Parrott, 1 Fed. 481;
Re Ah Chong, 2 Fed. 733;
People ex rel. Farrington V. Mensching, 187 N. Y.

18;
Royster Guam, Co. V. Virginia, 253 U. S. 412.

Illustrations could be multiplied, but none of them 
would be so directly applicable here as are those to which 
attention has been directed.

The vice of this legislation appears on its face. It lays 
down a general principle which confers the right to vote 
at a Democratic primary election upon all voters qualified 
under the Constitution and laws of the State of Texas 
who are bona fide members of the Democratic party. Then



33

follows the discrimination, couched in the most emphatic 
terms, that in no event shall a negro he permitted to par­
ticipate in a Democratic primary election held in the State 
of Texas. Not content with that explicit discrimination, 
there follows the provision that should the negro vote in a 
Democratic primary election liis ballot shall be void, and 
then, to emphasize the humiliation sought to be inflicted 
upon the negro, the election officials are directed by the 
statute to “throw out”  such ballot and “not count the 
same." It is like administering a kick to a murdered man 
as an evidence of malice and contempt.

If this is not arbitrary classification by race and color; 
if it does not constitute a complete deprivation of the equal 
protection of the laws; if it is not an abridgment of 
privileges and immunities of a citizen of the United States, 
then it is impossible to conceive of any acts which come 
within those terms. Every white man and every white 
woman who possesses the qualifications mentioned in the 
act, however ignorant or degraded, or mentally unfit, 
whether naturalized or native, may vote without let or 
hindrance, and no negro, though possessing all the quali­
fications prescribed by the statute, however intelligent and 
patriotic and industrious and useful a citizen he may be, 
though he and his ancestors may have lived and labored 
within the State from the time of its organization, is denied 
that right.

We are not here concerned with a political question. 
It is one that transcends all politics. It is one which 
involves; the supremacy of the Constitution both in its 
letter and in its spirit. It cannot be met with the con­
temptible platitude that is in itself an insult to the Con­
stitution, that the “ Democratic party of the State (Texas) 
is a white man’s party.” Nor is it an answer to say to 
a negro who believes in the doctrines of the Democratic 

'■party, that because the law relating to the primaries of



34

other political parties lias not provided for the exclusion 
of negroes from membership therein and because such par­
ties may select their own candidates to be voted upon in 
the general election that he has no cause for complaint. 
In other words, the suggestion is that in view of the fact 
that the Legislature of Texas has not yet prohibited 
negroes from voting in the Republican primaries, and re­
gardless of the fact that there are negroes who conscien­
tiously prefer to vote for the principles and policies of 
the Democratic party, their remedy for exclusion from 
that party is to vote for the candidates of a party to whose 
doctrines they are opposed.

Let us suppose the conditions were reversed, and the 
white Democrats of Texas were excluded from the Demo­
cratic primaries, and, by way of consolation, were informed 
that they might vote for the candidates of the Republican 
party of Texas. With what satisfaction such a sop would 
be received!

III.

It is respectfully submitted that the judgment of the 
Court below should be reversed, and the cause re­
manded for trial upon its merits.

LOUIS MARSHALL, 
MOORFIELD STOREY,
ARTHUR B. SPINGARN,
FRED O. KNOLLENBERG, 
ROBERT J. CHANNELL,

Counsel for Plain tiff-in-Error.











SUPREME COURT OF THE UNITED STATES,
No. 265.—O c to b er  T e r m , 1931.

L. A. Nixon, Petitioner, 
vs.

James Condon and C. H. Kolle, ’ 
Respondents.

On Writ of Certiorari to the 
United States Circuit Court 
of Appeals for the Fifth Cir­
cuit.

[May 2, 1932.]
Mr.. Justice C ard o zo  delivered the opinion of the Court.

The petitioner, a Negro, has brought this action against judges 
of election in Texas to recover damages for their refusal by reason 
of his race or color to permit him to cast his vote at a primary 
election.

This is not the first time that he has found it necessary to invoke 
the jurisdiction of the federal courts in vindication of privileges 
secured to him by the federal Constitution.

In Nixon v. Herndon, 273 U. S. 536, decided at the October 
Term, 1926, this court had before it a statute of the State of Texas 
(Article 3093a, Revised Civil Statutes, afterwards numbered 3107) 
whereby the legislature had said that “ in no event shall a negro 
be eligible to participate in a democratic party primary election 
[held in that State] ” , and that “ should a negro vote in a demo­
cratic primary election, the ballot shall be void” , and election 
officials were directed to throw it out. While that mandate was in 
force, the Negro was shut out from a share in primary elections, 
not in obedience to the will of the party speaking through the party 
organs, but by the command of the State itself, speaking by the 
voice of its chosen representatives. At the suit of this petitioner, 
the statute was adjudged void as an infringement of his rights 
and liberties under the Constitution of the United States.

Promptly after the announcement of that decision, the legisla­
ture of Texas enacted a new statute (1. 1927, e. 67) repealing the 
article condemned by this court; declaring that the effect of the 
decision was to create an emergency with a need for immediate 
action; and substituting for the article so repealed another bear­



2 N ixon  vs. Condon et al.

ing the same number. By the article thus substituted, “ every 
political party in this State through its State Executive Com­
mittee 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; 
provided that no person shall ever be denied the right to parti­
cipate in a primary in this State because of former political views 
or affiliations or because of membership or non-membership in or­
ganizations other than the political party.”

Acting under the new statute, the State Executive Committee 
of the Democratic party adopted a resolution “ that all white 
democrats who are qualified under the constitution and laws of 
Texas and who subscribe to the statutory pledge provided in Ar­
ticle 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 the chairman and secretary were 
directed to forward copies of the resolution to the committees in 
the several counties.

On July 28, 1928, the petitioner, a citizen of the United States, 
and qualified to vote unless disqualified by the foregoing resolu­
tion, presented himself at the polls and requested that he be 
furnished with a ballot. The respondents, the judges of election, 
declined to furnish the ballot or to permit the vote on the ground 
that the petitioner was a Negro and that by force of the resolu­
tion of the Executive Committee only white Democrats were al­
lowed to be voters at the Democratic primary. The refusal was 
followed by this action for damages. In the District Court there 
was a judgment of dismissal (34 F. (2d) 464), which was af­
firmed by the Circuit Court of Appeals for the Fifth Circuit, 49 
F. (2d) 1012. A writ of certiorari brings the cause here.

Barred from voting at a primary the petitioner has been, and 
this for the sole reason that his color is not white. The result 
for him is no different from what it was when his cause was here 
before. The argument for the respondents is, however, that iden­
tity of result has been attained through essential diversity of 
method. We are reminded that the Fourteenth Amendment is a 
restraint upon the States and not upon private persons uncon­
nected with a State. United States v. Cruikshank, 92 U. S. 542; 
Strauder v. West Virginia, 100 U. S. 303; Ex parte Virginia,



N ixon  vs. Condon et al. 3

100 U. S. 339, 346; James v. Bowman, 190 U. S. 127, 136. This 
line of demarcation drawn, we are told that a political party is 
merely a voluntary association; that it has inherent power like 
voluntary associations generally to determine its own membership; 
that the new article of the statute, adopted in place of the man­
datory article of exclusion condemned by this court, has no other 
effect than to restore to the members of the party the power 
that would have been theirs if the lawmakers had been silent; and 
that qualifications thus established are as far aloof from the im­
pact of constitutional restraint as those for membership in a golf 
club or for admission to a Masonic lodge.

"Whether a political party in Texas has inherent power today 
without restraint by any law to determine its own membership, 
we are not required at this time either to affirm or to deny. The 
argument for the petitioner is that quite apart from the article 
in controversy, there are other provisions of the Election Law 
whereby the privilege of unfettered-choice has been withdrawn or 
abridged (citing, e. g., Articles 2955, 2975, 3100, 3104, 3105, 3110, 
3121, Revised Civil Laws) ; that nomination at a primary is in 
many circumstances required by the statute if nomination is to be 
made at all (Article 3101) ; that parties and their representatives 
have become the custodians of official power (Article 3105) ; and 
that if heed is to be given to the realities of political life, they are 
now agencies of the State, the instruments by which government 
becomes a living thing. In that view, so runs the argument, a 
party is still free to define for itself the political tenets of its 
members, but to those who profess its tenets there may be no 
denial of its privileges.

A narrower base will serve for our judgment in the cause at 
hand. "Whether the effect of Texas legislation has been to work so 
complete a transformation of the concept of a political party as a 
voluntary association, we do not now decide. Nothing in this 
opinion is to be taken as carrying with it an intimation that the 
court is ready or unready to follow the petitioner so far. As to 
that, decision must be postponed until decision becomes necessary. 
"Whatever our conclusion might be if the statute had remitted to 
the party the untrammeled power to prescribe the qualifications of 
its members, nothing of the kind was done. Instead, the statute 
lodged the power in a committee, which excluded the petitioner



4 N ixon  vs. Condon et al.

and others of his race, not by virtue of any authority delegated 
by the party, but by virtue of an authority originating or sup­
posed to originate in the mandate of the law.

We recall at this point the wording of the statute invoked by 
the respondents. “ 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 
determine who shall be qualified to vote or otherwise participate 
in such political party.”  Whatever inherent power a State polit­
ical party has to determine the content of its membership resides 
in the State convention. Bryce, Modern Democracies, Yol. 2, p. 40. 
There platforms of principles are announced and the tests of party 
allegiance made known to the world. What is true in that regard 
of parties generally, is true more particularly in Texas, where the 
statute is explicit in committing to the State convention the for­
mulation of the party faith (Article 3139). The State Executive 
Committee, if it is the sovereign organ of the party, is not such 
by virtue of any powers inherent in its being. It is, as its name 
imports, a committee and nothing more, a committee to be chosen 
by the convention and to consist of a chairman and thirty-one 
members, one from each senatorial district of the State (Article 
3139). To this committee the statute here in controversy has at­
tempted to confide authority to determine of its own motion the 
requisites of party membership and in so doing to speak for the 
party as a whole. Never has the State convention made declara­
tion of a will to bar Negroes of the State from admission to the 
party ranks. Counsel for the respondents so conceded upon the 
hearing in this court. Whatever power of exclusion has been 
exercised by the members of the committee has come to them, 
therefore, not as the delegates of the party, but as the delegates 
of the State. Indeed, adherence to the statute leads to the con­
clusion that a resolution once adopted by the committee must con­
tinue to be binding upon the judges of election though the party 
in convention may have sought to override it, unless the com­
mittee, yielding to the moral force of numbers, shall revoke its 
earlier action and obey the party will. Power so intrenched is 
statutory, not inherent. If the State had not conferred it, there 
would be hardly color of right to give a basis for its exercise.

Our conclusion in that regard is not affected by what was ruled 
by the Supreme Court of Texas in Love v. Wilcox, 28 S. W. (2d)



N ixon  vs. Condon et al. 5

515, or by the Court of Civil Appeals in White v. Lubbock, 30 S. W. 
(2d) 722. The ruling in the first case was directed to the validity 
of the provision whereby neither the party nor the committee is to 
be permitted to make former political affiliations the test of party 
regularity. There were general observations in the opinion as to 
the functions of parties and committees. They do not constitute 
the decision. The decision was merely this, that “ the committee 
whether viewed as an agency of the State or as a mere agency of 
the party is not authorized to take any action which is forbidden 
by an express and valid statute.”  The ruling in the second case, 
which does not come from the highest court of the State, upholds 
the constitutionality of section 3107 as amended in 1927, and 
speaks of the exercise of the inherent powers of the party by the 
act of its proper officers. There is nothing to show, however, that 
the mind of the court was directed to the point that the members 
of a committee would not have been the proper officers to exercise 
the inherent powers of the party if the statute had not attempted to 
clothe them with that quality. The management of the affairs of 
a group already associated together as members of a party is ob­
viously a very different function from that of determining who 
the members of the group shall be. If another view were to be 
accepted, a committee might rule out of the party a faction dis­
tasteful to itself, and exclude the very men who had helped to 
bring it into existence. In any event, the Supreme Court of Texas 
has not yet spoken on the subject with clearness or finality, and 
nothing in its pronouncements brings us to the belief that in the 
absence of a statute or other express grant it would recognize a 
mere committee as invested with all the powers of the party as­
sembled in convention. Indeed its latest decision dealing with any 
aspect of the statute here in controversy, a decision handed down 
on April 21, 1932 (Love v. Buckner, Supreme Court of Texas), de­
scribes the statute as constituting “ a grant of power”  to the State 
Executive Committee to determine who shall participate in the 
primary elections.* What was questioned in that case was the 
validity of a pledge exacted from the voters that it was their bona

We are hound to give effect to a grant of power to the State Executive 
Commit+ee of a party to determine who shall participate in the acts of the 
party otherwise than by voting in a primary, when the Legislature grants 
the power in language too plain to admit of controversy, and when the deter-



6 N ixon  vs. Condon et al.

fide purpose to support the party nominees. The court in up­
holding the exaction found a basis for its ruling in another article 
of the Civil Statutes (Art. 3167), in an article of the Penal Code 
(Art. 340), and in the inherent power of the committee to adopt 
regulations reasonably designed to give effect to the obligation 
assumed by an elector in the very act of voting. To clinch the 
argument the court then added that if all these sources of author­
ity were inadequate, the legislature had made in Article 3107 an 
express “ grant of power”  to determine qualifications generally. 
There is no suggestion in the opinion that the inherent power of 
the committee was broad enough (apart from legislation) to per­
mit it to prescribe the extent of party membership, to say to a 
group of voters, ready as was the petitioner to take the statutory 
pledge, that one class should be eligible and another not. On the 
contrary, the whole opinion is instinct with the concession that 
pretensions so extraordinary must find their warrant in a statute. 
The most that can be said for the respondents is that the inherent 
powers of the Committee are still unsettled in the local courts. 
Nothing in the state of the decisions requires us to hold that they 
have been settled in a manner that would be subversive of the 
fundamental postulates of party organization. The suggestion is 
offered that in default of inherent power or of statutory grant the 
committee may have been armed with the requisite authority by 
vote of the convention. Neither at our bar nor on the trial was 
the case presented on that theory. At every stage of the case the 
assumption has been made that authority, if there was any, was 
either the product of the statute or was inherent in the committee 
under the law of its creation.

We discover no significance, and surely no significance favor­
able to the respondents, in earlier acts of legislation whereby the 
power to prescribe additional qualifications was conferred on local 
committees in the several counties of the State. L. 1903, c. 101, 
sec. 94. The very fact that such legislation was thought necessary 
is a token that the committees were without inherent power. We 
do not impugn the competence of the legislature to designate the
mination of the Committee conflicts wi+h no other statutory requirement or 
prohibition, especially when the Committee’s determination makes effectual 
the public policy of the State as revealed in its statutes.”  Love v. Buckner, 
supra.



N ixon  vs. Condon et al. 7

agencies whereby the party faith shall be declared and the party 
discipline enforced. The pith of the matter is simply this, that 
when those agencies are invested with an authority independent 
of the will of the association in whose name they undertake to 
speak, they become to that extent the organs of the State itself, 
the repositories of official power. They are then the governmental 
instruments whereby parties are organized and regulated to the 
end that government itself may be established or continued. "VYhat 
they do in that relation, they must do in submission to the man­
dates of equality and liberty that bind officials everywhere. They 
are not acting in matters of merely private concern like the di­
rectors or agents of business corporations. They are acting in 
matters of high public interest, matters intimately connected with 
the capacity of government to exercise its functions unbrokenlv 
and smoothly. Whether in given circumstances parties or their 
committees are agencies of government within the Fourteenth or 
the Fifteenth Amendment is a question which this court will de­
termine for itself. It is not concluded upon such an inquiry by 
decisions rendered elsewhere. The test is not whether the members 
of the Executive Committee are the representatives of the State in 
the strict sense in which an agent is the representative of his prin­
cipal. The test is whether they are to be classified as representa­
tives of the State to such an extent and in such a sense that the 
great restraints of the Constitution set limits to their action.

With the problem thus laid bare and its essentials exposed to 
view, the case is seen to be ruled by Nixon v. Herndon, supra. 
Delegates of the State’s power have discharged their official func­
tions in such a way as to discriminate invidiously between white 
citizens and black. Ex parte Virginia, supra; Buchanan v. Worley, 
245 U. S. 60, 77. The Fourteenth Amendment, adopted as it was 
with special solicitude for the equal protection of members of 
the Negro race, lays a duty upon the court to level by its judg­
ment these barriers of color.

The judgment below is reversed and the cause remanded for 
further proceedings in conformity with this opinion.

A true copy.
Test:

Clerk, Supreme Court, U. S.





SUPREME COURT OF THE UNITED STATES.
No. 265.—O c to b er  Term, 1931.

L. A. Nixon, Petitioner, ] On Writ of Certiorari to
the United States Cir­
cuit Court of Appeals

James Condon and C. H. Kolle. for the Fifth Circuit.

[May 2, 1932.]

Separate opinion of Mr. Justice M cR e y n o l d s .

March 15, 1929, petitioner here brought suit for damages in the 
United States District Court, Western Division of Texas, against 
Condon and Kolle, theretofore judges in a Democratic primary 
election. He claims they wrongfully deprived him of rights guar­
anteed by the Fourteenth and Fifteenth Amendments, Federal 
Constitution, by denying him the privilege of voting therein. Upon 
motion the trial court dismissed the petition, holding that it failed 
to state a cause of action; the Circuit Court of Appeals sustained 
this ruling. The matter is here by certiorari.

The original petition, or declaration, alleges—
L. A. Nixon, a negro citizen of the United States and of Texas 

duly registered and qualified to vote in Precinct No. 9, El Paso 
County at the general election and a member of the Democratic 
party, was entitled to participate in the primary election held 
by that party July 28, 1928, for nominating candidates for State 
and other offices. He duly presented himself and sought to east 
his ballot. Defendants, the judges, refused his request by reason 
of the following resolution theretofore adopted by the State Demo­
cratic Executive Committee—

“ Resolved: That all white Democrats who are qualified 
and under the Constitution and laws of Texas and who sub­
scribe to the statutory pledge provided in Article 3110, Re­
vised Civil Statutes of Texas, and none other, be allowed to 
participate in the primary elections to be held July 28, 1928,



2 N ixon  vs. Condon et al.

and August 25, 1928, and further, that the Chairman and 
secretary of the State Democratic Executive Committee be 
directed to forward to each Democratic County Chairman in 
Texas a copy of this resolution for observance.”

That, the quoted resolution “ was adopted by the State Demo­
cratic Executive Committee of Texas under authority of the Act 
of the Legislature” —Chap. 67, approved June 7, 1927. Chapter 
67 undertook to repeal former Article 3107,* * Chap. 13, Rev. Civil 
Stat. 1925, which had been adopted in 1923, Ch. 32, Sec. 1 (Article 
3093a) and in lieu thereof to enact the following:

“ Article 3107 (Ch. 67 Acts 1927). 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 determine who shall be qualified to 
vote or otherwise participate in such political party; pro­
vided 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-mem­
bership in organizations other than the political party.”

That, in 1923, prior to enactment of Chap. 67, the Legislature 
adopted Article 3093a,t Revised Civil Statutes, declaring that no 
negro should be eligible to participate in a Democratic party pri­
mary election. This was held invalid state action by Nixon v. 
Herndon, 273 U. S. 536.

That, when Chap. 67 was adopted only the Democratic party 
held primary elections in Texas and the legislative purpose was

tArticle 3093a from Acts 1923. “ All qualified voters under the laws and 
constitution of the State of Texas who are "bona fide members of the Demo­
cratic party, shall be eligible to participate in any Democratic party primary 
election, provided such voter complies with all laws and rules governing 
party primary elections; however, in no event shall a negro be eligible to 
participate in a Democratic party primary election held in the State of Texas, 
and should a negro vote in a Democratic primary election, such ballot shall 
be void and election officials are herein directed to throw out such ballot and 
not count the same. ’ ’

*Original Art. 3107—Eev. Civ. Stats. 1925: “ In no event shall a negro be
eligible to participate in a Democratic party primary election held in the 
State of Texas, and should a negro vote in a Democratic primary election, 
such ballot shall be void and election officials are herein directed to throw out 
such ballot and not count the same. ’ ’



thereby to prevent Nixon and other negroes from participating in 
such primaries.

That, Chap. 67 and the above quoted resolution of the Execu­
tive Committee are inoperative, null and void in so far as they 
exclude negroes from primaries. They conflict with the Four­
teenth and Fifteenth Amendments to the Federal Constitution 
and laws of the United States.

That, there are many thousand negro Democratic voters in 
Texas. The State is normally overwhelmingly Democratic and 
nomination by the primaries of that party is equivalent to an 
election. Practically there is no contest for State offices except 
amongst candidates for such nominations.

That, the defendants’ action in denying petitioner the right 
to vote was unlawful, deprived him of valuable political rights, 
and damaged him five thousand dollars. And for this sum he 
asks judgment.

The trial court declared—
“ The Court here holds that the State Democratic Executive 

Committee of the State of Texas, at time of the passage of the 
resolution here complained of, was not a body corporate to which 
the Legislature of the State of Texas could delegate authority to 
legislate, and that the members of said Committee were not of­
ficials of the State of Texas, holding position as officers of the 
State of Texas, under oath, or drawing compensation from the 
State, and not acting as a State governmental agency, within the 
meaning of the law, but only as private individuals holding such 
position as members of said State Executive Committee by virtue 
of action taken upon the part of members of their respective po­
litical party; and this is also true as to defendants, they acting 
only as representatives of such political party, viz: the Democratic 
party, in connection with the holding of a Democratic primary 
election for the nomination of candidates on the ticket of the Demo­
cratic party to be voted on at the general election, and in refusing 
to permit plaintiff to vote at such Democratic primary election 
defendants were not acting for the State of Texas, or as a gov­
ernmental agency of said State.”

Also, “ that the members of a voluntary association, such as a 
political organization, members of the Democratic party in Texas, 
possess inherent power to prescribe qualifications regulating mem-

N ixon  vs. Condon et al. 3



4 N ixon  vs. Condon et al.

bership of such organizations, or political party. That this is, and 
was, true without reference to the passage by the Legislature of 
the State of Texas of said Art. 3107, and is not affected by the 
passage of said act, and such inherent power remains and exists 
just as if said act had never been passed. ”

The Circuit Court of Appeals said—
“ The distinction between appellant’s cases, the one under the 

1923 statute and the other under the 1927 statute, is that he was 
denied permission to vote in the former by State statute, and in the 
latter by resolution of the State Democratic Executive Committee. 
It is argued on behalf of appellant that this is a distinction without 
a difference, and that the State through its legislature attempted 
by the 1927 act to do indirectly what the Supreme Court had held 
it was powerless to accomplish directly by the 1923 act.

“ We are of opinion, however, that there is a vast difference be­
tween the two statutes. The Fourteenth Amendment is expressly 
directed against prohibitions and restraints imposed by the States, 
and the Fifteenth protects the right to vote against denial or 
abridgment by any State or by the United States; neither operates 
against private individuals or voluntary associations. United 
States v. Cruikshank, 92 U. S. 542; Virginia v. Hives, 100 U. S. 
313; James v. Bowman, 190 U. S. 127.

“ A political party is a voluntary association, and as such has 
the inherent power to prescribe the qualifications of its members. 
The act of 1927 was not needed to confer such power; it merely 
recognized a power that already existed. Waples v. Marrast, 108 
Tex. 5; White v. Lubbock, 30 (Tex.) S. W. 722; Grigsby v. Karris, 
27 F. (2d) 942. It did not attempt as did the 1923 act to exclude 
any voter from membership in any political party. Precinct 
judges of election are appointed by party executive committees 
and are paid for their services out of funds that are raised by 
assessments upon candidates. Revised Civil Statutes of Texas, 
Secs. 3104, 3108.”

I think the judgment below is right and should be affirmed.
The argument for reversal is this—■
The statute—Chap. 67, present Article 3107—declares that every 

political party through its State Executive Committee “ shall have 
the power to prescribe the qualifications of its own members and



N ixon  vs. Condon et al. 5

shall in its own way determine who shall be qualified to vote or 
otherwise participate in such political party.”  The result, it is 
said, is to constitute the Executive Committee an instrumentality of 
the State with power to take action, legislative in nature, concern­
ing membership in the party. Accordingly, the attempt of the 
Democratic Committee to restrict voting in primaries to white 
people amounted to State action to that effect within the intend­
ment of the Federal Constitution and was void under Nixon v. 
Herndon, supra.

This reasoning rests upon an erroneous view of the meaning 
and effect of the statute.

In Nixon v. Herndon the Legislature in terms forbade all negroes 
from participating in Democratic primaries. The exclusion was 
the direct result of the statute and this was declared invalid be­
cause in conflict with the Fourteenth Amendment.

The act now challenged withholds nothing from any negro; it 
makes no discrimination. It recognizes power in every political 
party, acting through its Executive Committee, to prescribe quali­
fications for membership, provided only that none shall be ex­
cluded on account of former political views or affiliations, or mem­
bership or non-membership in any non-political organization. The 
difference between the two pronouncements is not difficult to dis­
cover.

Nixon’s present complaint rests upon the asserted invalidity of 
the resolution of the Executive Committee and, in order to prevail, 
he must demonstrate that it amounted to direct action by the State.

The plaintiff’s petition does not attempt to show what powers the 
Democratic party had entrusted to its State Executive Committee. 
It says nothing of the duties of the Committee as a party organ; 
no allegation denies that under approved rules and resolutions, 
it may determine and announce qualifications for party member­
ship. We cannot lightly suppose that it undertook to act without 
authority from the party. Ordinarily, between conventions party 
executive committees have general authority to speak and act in 
respect of party matters. There is no allegation that the ques­
tioned resolution failed to express the party will. For present 
purposes the Committee’s resolution must be accepted as the voice 
of the party.



6 N ixon  vs. Condon et al.

Petitioner insists that the Committee’s resolution was author­
ized by the State; the statute only recognizes party action and he 
may not now deny that the party had spoken. The exclusion re­
sulted from party action and on that footing the cause must be 
dealt with. Petitioner has planted himself there. Whether the 
cause would be more substantial if differently stated, we need not 
inquire.

As early as 1895—Ch. 35, Acts 1895—the Texas Legislature 
undertook through penal statutes to prevent illegal voting in 
political primaries, also false returns, bribery, etc. And later, 
many, if not all, of the general safeguards designed to secure 
orderly conduct of regular elections were extended to party pri­
maries.

By Acts of 1903 and 1905, and subsequent amendments, the 
Legislature directed that only official ballots should be used in 
all general elections. These are prepared, printed and distributed 
by public officials at public expense.

With adoption of the official ballot it became necessary to pre­
scribe the methods for designating the candidates whose names 
might appear on such ballot. Three, or more, have been author­
ized. A party whose last candidate for governor received 100,000 
votes must select its candidate through a primary election. Where 
a party candidate has received less than 100,000, and more than 
10,000, votes it may designate candidates through convention or 
primary, as its Executive Committee may determine. A written 
petition by a specified number of voters may be used in behalf 
of an independent or nonpartisan candidate.

Some of the States have undertaken to convert the direct primary 
into a legally regulated election. In others, Texas included, the 
primary is conducted largely under party rules. Expenses are 
borne by the party; they are met chiefly from funds obtained by 
assessments upon candidates. A number of States (eleven per­
haps) leave the determination of one’s right to participate in a 
primary to the party, with or without certain minimum require­
ments stated by statute. In “ Texas the party is free to impose 
and enforce the qualifications it sees fit,”  subject to some definite 
restrictions. See Primary Elections, Merriam and Overacker, pp. 
£>6, 72, 73.



N ixon  vs. Condon et ad. 7

A “ primary election”  within the meaning of the chapter of 
the Texas Rev. Civil Stat. relating to nominations “ means an 
election held by the members of an organized political party for 
the purpose of nominating the candidates of such party to be 
voted for at a general or special election, or to nominate the county 
executive officers of a party.”  Article 3100; General Laws 1905, 
(1st C. S.) Ch. 11, See. 102. The statutes of the State do not 
and never have undertaken to define membership—who shall be 
regarded as a member—in a political party. They have said that 
membership shall not be denied to certain specified persons; other­
wise, the matter has been left with the party organization.

Since 1903 (Acts 1903, Ch. Cl., Sec. 94,* p. 150, 28th Leg.; 
Acts 1905, Ch. 11, Sec. 103, p. 543, 29th Leg.) the statutes of 
Texas have recognized the power of party executive committees to 
define the qualifications for membership. The Act of 1923, Ch. 
32, Sec. 1, (Art. 3093a) and the Act of 1927, Ch. 67, Sec. 1, (Art. 
3107) recognize the authority of the party through the Executive 
Committee, or otherwise, to specify such qualifications throughout 
the State. See Love v. Wilcox, 28 S. W. Rep. (2d) 515, 523.

These Acts, and amendments, also recognize the right of State 
and County Executive Committees generally to speak and act for 
the party concerning primaries. These committees appoint the 
necessary officials, provide supplies, canvass the votes, collect as­
sessments, certify the successful candidates, pay expenses and 
do whatever is required for the orderly conduct of the primaries. 
Their members are not State officials; they are chosen by those 
who compose the party; they receive nothing from the State.

By the amendment of 1923 the Legislature undertook to declare 
that “ all qualified voters under the laws and constitution of the 
State of Texas who are bona fide members of the Democratic party, 
shall be eligible to participate in any Democratic party primary 
election, provided such voter complies with all laws and rules 
governing party primary elections; however, in no event shall a 
negro be eligible to participate in a Democratic party primary elec­
tion held in the State of Texas.”  Love v. Wilcox, supra, p. 523.

Acta 1903, Ch. Cl. “ Sec. 94. . . . provided, that the county execu­
tive committee of the party holding any primary election may prescribe ad­
ditional qualifications necessary to participate therein. ’  ’



8 Nixon  vs. Condon et al.

This enactment, held inoperative by Nixon v. Herndon, supra, 
(1927) was promptly repealed.

The courts of Texas have spoken concerning the nature of po­
litical primary elections and their relationship to the State. And 
as our present concern is with parties and legislation of that State, 
we turn to them for enlightenment rather than to general obser­
vations by popular -writers on public affairs.

In Waples v. Marrast, 108 Texas 5, 11, 12, decided in 1916, the 
Supreme Court declared—

“ A political party is nothing more or less than a body of men 
associated for the purpose of furnishing and maintaining the 
prevalence of certain political principles or beliefs in the public 
policies of the government. As rivals for popular favor they 
strive at the general elections for the control of the agencies of 
the government as the means of providing a course for the gov­
ernment in accord with their political principles and the adminis­
tration of those agencies by their own adherents. According to 
the soundness of their principles and the wisdom of their policies 
they serve a great purpose in the life of a government. But the 
fact remains that the objects of political organizations are inti­
mate to those who compose them. They do not concern the gen­
eral public. They directly interest, both in their conduct and in 
their success, only so much of the public as are comprised in their 
membership, and then only as members of the particular organi­
zation. They perform no governmental function. They consti­
tute no governmental agency. The purpose of their primary elec­
tions is merely to enable them to furnish their nominees as can­
didates for the popular suffrage. In the interest of fair methods 
and a fair expression by their members of their preference in the 
selection of their nominees, the State may regulate such elections 
by proper laws, as it has done in our general primary law, and as 
it was competent for the Legislature to do by a proper act of the 
character of the one here under review. But the payment of the 
expenses of purely party elections is a different matter. On prin­
ciple, such expenses can not be differentiated from any other 
character of expense incurred in carrying out a party object, since 
the attainment of a party purpose—the election of its nominees 
at the general elections through the unified vote of the party mem­
bership, is necessarily the prime object of a party primary. . . .



N ixon  vs. Condon et al. 9

“ To provide nominees of political parties for the people to vote 
upon in the general elections, is not the business of the State. It 
is not the business of the State because in the conduct of the gov­
ernment the State knows no parties and can know none. If it is 
not the business of the State to see that such nominations are 
made, as it clearly is not, the public revenues can not be em­
ployed in that connection. To furnish their nominees as claimants 
for the popular favor in the general elections is a matter which 
concerns alone those parties that desire to make such nominations. 
It is alone their concern because they alone are interested in the 
success of their nominees. The State, as a government, can not 
afford to concern itself in the success of the nominees of any po­
litical party, or in the elective offices of the people being filled only 
by those who are the nominees of some political party. Political 
parties are political instrumentalities. They are in no sense gov­
ernmental instrumentalities. The responsible duties of the State 
to all the people are to be performed and its high objects effected 
without reference to parties, and they have no part or place in the 
exercise by the State of its great province in governing the people. ’ ’

Koy v. Schneider, 110 Texas, 369, 376 (April 21, 1920)—“ The 
Act of the Legislature deals only with suffrage within the party 
primary or convention, which is but an instrumentality of a group 
of individuals for the accomplishment of party ends.”  And see 
id. pp. 394 et seq.

Cunningham v. McDermett, 277 S. W. Rep. 218, (Court of Civil 
Appeals, Oct. 22, 1925)—“ Appellant contends that the Legis­
lature by prescribing how party primaries must be conducted, 
turned the party into a governmental agency, and that a candi­
date of a primary, being the candidate of the governmental agency, 
should be protected from the machinations of evilly disposed 
persons.

“ With this proposition we cannot agree, but consider them as 
they were held to be by our Supreme Court in the case of Waples 
v. Marrast, 108 Tex. 5, 184 S. W. 180, L. R. A. 1917A, 253, in which 
Chief Justice Phillips said: ‘ Political parties are political instru­
mentalities. They are in no sense governmental instrumen­
talities.’ ”

Briscoe v. Boyle, 286 S. W. 275, 276 (Court Civil Appeals, July 
2, 1926)—This case was decided by an inferior court while the



10 N ixon  vs. Condon et al.

Act of 1923, Ch. 32, Sec. 1, amending Art. 3093, was thought to be 
in force—before Nixon v. Herndon, supra, ruled otherwise. It 
must be read with that fact in mind. Among other things, the 
Court said—“ In fine, the Legislature has in minute detail laid 
out the process by which political parties shall operate the statute- 
made machinery for making party nominations, and has so hedged 
this machinery with statutory regulations and restrictions as to 
deprive the parties and their managers of all discretion in the 
manipulation of that machinery.”

Love v. Wilcox, supra, 522 (Sup. Ct., May 17, 1930)—“ We are 
not called upon to determine whether a political party has power, 
beyond statutory control, to prescribe what persons shall partici­
pate as voters or candidates in its conventions or primaries. We 
have no such state of facts before us. The respondents claim that 
the State Committee has this power by virtue of its general au­
thority to manage the affairs of the party. The statute, article 
3107, Complete Tex. St. 1928 (Vernon’s Ann. Civ. St. art. 3107), 
recognizes this general authority of the State Committee, but places 
a limitation on the discretionary power which may be conferred 
on that committee by the party by declaring that, though the party 
through its State Executive Committee, shall have the power to 
prescribe the qualifications of its own members, and to determine 
who shall be qualified to vote and otherwise participate, yet the 
committee shall not exclude anyone from participation in the 
party primaries because of former political views or affiliations, or 
because of membership or non-membership in organizations other 
than the political party. The committee’s discretionary power is 
further restricted by the statute directing that a single, uniform 
pledge be required of the primary participants. The effect of 
the statutes is to decline to give recognition to the lodgment of 
power in a State Executive Committee, to be exercised at its dis­
cretion. The statutes have recognized the right of the party to 
create an Executive Committee as an agency of the party, and 
have recognized the right of the party to confer upon that com­
mittee certain discretionary powers, but have declined to recog­
nize the right to confer upon the committee the discretionary 
power to exclude from participation in the party’s affairs any 
one because of former political views or affiliations, or because of 
refusal to take any other than the statutory pledge. It is obvious,



N ixon  vs. Condon et al. 11

we think, that the party itself never intended to confer upon its 
Executive Committee any such discretionary power. The party 
when it selected its State Committee did so with full knowledge of 
the statutory limitations on that committee’s authority, and must 
be held to have selected the committee with the intent that it would 
act within the powers conferred, and within the limitations de­
clared by the statute. Hence, the committee, whether viewed as 
an agency of the state or as a mere agency of the party, is not 
authorized to take any action which is forbidden by an express 
and valid statute.”

Thomas B. Love, Appellant v. Buchner and Wakefield, Appellees, 
Texas Supreme Court, April 21, 1932.

The Court of Civil Appeals certified to the Supreme Court for 
determination the question—“ Whether the Democratic State Ex­
ecutive Committee had lawful authority to require otherwise law­
fully qualified and eligible Democratic voters to take the pledge 
specified in the resolution adopted by the Committee at its meet­
ing in March,”  1932.

The resolution directed that no person should be permitted to 
participate in any precinct or county Democratic convention held 
for the purpose of selecting delegates to the State convention at 
which delegates to the National Democratic Convention are selected 
unless such person shall take a written pledge to support the 
nominees for President and Vice-President.

“ The Court answers that the Executive Committee was author­
ized to require the voters to take the specified pledge.”

It said—
“ The Committee.’s power to require a pledge is contested on the 

ground that the Committee possesses no authority over the conven­
tions of its party not granted by statute, and that the statutes of 
Texas do not grant, but negative, the Committee’s power to exact 
such a pledge.

“ We do not think it consistent with the history and usages of 
parties in this State nor with the course of our legislation to re­
gard the respective parties or the state executive committees as 
denied all power over the party membership, conventions, and pri­
maries save where such power may be found to have been expressly 
delegated by statute. On the contrary, the statutes recognize party



12 N ixon  vs. Condon et al.

organizations including the state committees, as the repositories of 
party power, which the Legislature has sought to control or regu­
late only so far as was deemed necessary for important govern­
mental ends, such as purity of the ballot and integrity in the as­
certainment and fulfillment of the party will as declared by its 
membership.

“ Without either statutory sanction or prohibition, the party 
must have the right to adopt reasonable regulations for the en­
forcement of such obligations to the party from its members as 
necessarily arise from the nature and purpose of party govern­
ment. . . .

“ We are forced to conclude that it would not be beyond the 
power of the party through a customary agency such as its state 
executive committee to adopt regulations designed merely to en­
force an obligation arising from the very act of a voter in par­
ticipating in party control and party action, though the statutes 
were silent on the subject. . . .

“ The decision in Love v. Wilcox, 119 Tex. 256, gave effect to 
the legislative intent by vacating action of the State Committee 
violative of express and valid statutes. Our answer to the cer­
tified question likewise gives effect to the legislative intent in up­
holding action of the State Committee in entire accord with the 
governing statutes as well as with party custom.”

The reasoning advanced by the court to support its conclusion 
indicates some inadvertence or possibly confusion. The difference 
between statutes which recognize and those which confer power is 
not always remarked, e. g., “ With regard to the state com­
mittee’s power to exact this pledge the statutes are by no means 
silent. The statutes do not deny the power but plainly recognize 
and confer same.”  But the decision itself is a clear affirmation 
of the general powers of the State Executive Committee under 
party custom to speak for the party and especially to prescribe 
the prerequisites for membership and for “ voters of said political 
party”  in the absence of statutory inhibition. The point actually 
ruled is inconsistent with the notion that the Executive Committee 
does not speak for the organization; also inconsistent with the 
view that the Committee’s powers derive from State statutes.



N ixon  vs. Condon et al. 13

If statutory recognition of the authority of a political party 
through its Executive Committee to determine who shall par­
ticipate therein gives to the resolves of such party or committee 
the character and effect of action by the State, of course the same 
rule must apply when party conventions are so treated; and it 
would be difficult logically to deny like effect to the rules and by­
laws of social or business clubs, corporations, and religious asso­
ciations, etc., organized under charters or general enactments. 
The State acts through duly qualified officers and not through the 
representatives of mere voluntary associations.

Such authority as the State of Texas has to legislate concern­
ing party primaries is derived in part from her duty to secure 
order, prevent fraud, etc., and in part from obligation to pre­
scribe appropriate methods for selecting candidates whose names 
shall appear upon the official ballots used at regular elections.

Political parties are fruits of voluntary action. Where there 
is no unlawful purpose, citizens may create them at will and limit 
their membership as seems wise. The State may not interfere. 
White men may organize; blacks may do likewise. A woman’s 
party may exclude males. This much is essential to free govern­
ment.

If any political party as such desires to avail itself of the privi­
lege of designating candidates whose names shall be placed on 
official ballots by the State it must yield to reasonable conditions 
precedent laid down by the statutes. But its general powers are 
not derived from the State and proper restrictions or recognition 
of powers cannot become grants.

It must be inferred from the provisions in her statutes and 
from the opinions of her courts that the State of Texas has in­
tended to leave political parties free to determine who shall be 
admitted to membership and privileges, provided that none shall 
be excluded for reasons which are definitely stated and that the 
prescribed rules in respect of primaries shall be observed in order 
to secure official recognition of nominees therein for entry upon 
the ballots intended for use at general elections.

By the enactment now questioned the Legislature refrained from 
interference with the essential liberty of party associations and 
recognized their general power to define membership therein.

The words of the statute disclose such purpose and the circum-



14 N ixon  vs. Condon et al.

stances attending its passage add emphasis. The act of 1923 had 
forbidden negroes to participate in Democratic primaries. Nixon 
v. Herndon (March, 1927) supra, held the inhibition invalid. 
Shortly thereafter (June, 1927) the Legislature repealed it and 
adopted the Article now numbered 3107 (Rev. Stats. 1928) and 
here under consideration. The fair conclusion is, that accepting 
our ruling as conclusive the lawmakers intended expressly to re­
scind action adjudged beyond their powers and then clearly to 
announce recognition of the general right of political parties to 
prescribe qualifications for membership. The contrary view dis­
regards the words, that “ every political party . . . shall in
its own way determine who shall be qualified to vote or otherwise 
participate in such political party” ; and really imputes to the 
Legislature an attempt indirectly to circumvent the judgment of 
this Court. We should repel this gratuitous imputation; it is 
vindicated by no significant fact.

The notion that the statute converts the Executive Committee 
into an agency of the State also lacks support. The language 
employed clearly imports that the political party, not the State, 
may act through the Committee. As shown above since the Act 
of 1903 the Texas laws have recognized the authority of Execu­
tive Committees to announce the party will touching membership.

And if to the considerations already stated there be added the 
rule announced over and over again that when possible statutes 
must be so construed as to avoid unconstitutionality, there can re­
main no substantial reason for upsetting the Legislature’s laudable 
effort to retreat from an untenable position by repealing the earlier 
act, and then declare the existence of party control over member­
ship therein to the end that there might be orderly conduct of 
party affairs including primary elections.

The resolution of the Executive Committee was the voice of the 
party and took from appellant no right guaranteed by the Federal 
Constitution or laws. It was incumbent upon the judges of the 
primary to obey valid orders from the Executive Committee. They 
inflicted no wrong upon Nixon.

A judgment of affirmance should be entered.
I  am authorized to say that Mr. Justice V a n  D e v a n t e r , Mr. 

Justice S u t h e r l a n d  and Mr. Justice B u t l e r  concur in this opinion.







NO..

Transcript of Record.
lll«lllllllillllMlllll!llll!llllllllllllllj|||llllll|j|j||j|j||||lllllllllllljlll!illlllj||ISIIIIjlU

United States Circuit Court of Appeals
FOR THE TENTH CIRCUIT.

I. W . LANE, A ppellant,
vs.

JESS WILSON, JOHN MOSS, AND MARION PARKS,
A p p e l l e e s .

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF OKLAHOMA.

FILED.









UNITED STATES CIRCUIT COURT OF APPEALS FOR 
THE TEffiTH CIRCUIT.

hoJlHBs
I. W. LANE, A p p e l l a n t ,

vs.
JESS WILSON, JOHN MOSS, AND MARION PARKS,

.......................  A p p e l l e e s .

APPEAL FBOM THE UNITED STATES DISTBICT COUET EOB THE 
EASTEBN DISTBICT OP OKLAHOMA.

I N D E X .
PAGE

Caption...............................................: ......................................  1

Petition...........................................................................   1

Separate answer of defendants Jess Wilson and Marion
Parks............ . . . ......................................... ....................... 1 1

Separate answer of defendant John Moss...........................  17
Reply to joint answer of defendants Jess Wilson and Mar­

ion Parks. . ......................................................  18
Reply to separate answer of defendant John Moss.............  21
Verdict........................................................................................  22
Motion for new trial.................................................................  22
Journal entry.............................................................................  24
Bill of exceptions......................................................................  26

Evidence on behalf of plaintiff:
I. W. Lane 27



INDEX— C ontinued.
pa g e

J. A. Cullam..............................................................  30
Washington Taylor..................................................  32
J. M. Jackson............................................................  33
Plaintiff’s Exhibit No. 2—1930 census report for

Wagoner County............................................... 38
I. W. Lane (recalled for further cross examina­

tion) ....................................................................  38
Evidence on behalf of defendants:

James L. Pace...........................................................  39
S. T. Denison............................................................. 40
Christopher Columbus Casedier...............................41
W. M. Chartier.......................................................  41
R. W. Baker............................................................... 42
Lon Lee......................................................................  42
Stout Atterberry....................................................... 42
Jess W ilson................................................................ 45
John Moss..................................................................  47

Defendants’ Exhibit # 2 —Letter from edi­
tor of Negro newspaper........................  48

Marion Parks............................................................  49
Rebuttal testimony of plaintiff:

William Oliver............................................................  51
I. W. Lane........................................................    51

Motion of defendants for instructed verdict.................  52
Plaintiff’s requested instruction No. 1 ...........................  52
Plaintiff’s requested instruction No. 2 ........................... 52
Plaintiff’s requested instruction No. 3 ........................... 53
Plaintiff’s requested instruction No. 4 ...........................  55
Plaintiff’s requested instruction No. 5 ...........................  56
Plaintiff’s requested instruction No. 6 ........................... 57
Plaintiff’s requested instruction No. 7 ......................  58
Opinion of the trial court..................................................  59
Instruction of verdict for defendants............................   61
Motion for new trial........................................................... 62
Order of court overruling motion for new trial.......... 64



IN THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF OKLAHOMA.

P l e a s  a n d  p r o c e e d in g s  b e f o r e  t h e  H o n o r a b l e  A l f r e d  P .  
H u r r a h , J u d g e  o f  t h e  D i s t r ic t 1 C o u r t  o f  t h e  U n i t e d  S t a t e s  

f o r  t h e  E a s t e r n  D i s t r ic t  o f  O k l a h o m a , p r e s i d in g  i n  t h e  f o l ­

l o w in g  ENTITLED CAUSE :

I .  W .  LANE, P l a i n t i f f ,

No. 6353 vs. Law
JESS WILSON, MARION PARKS, AND JOHN MOSS,

D e f e n d a n t s .

Petition.
For his cause of action against the defendants, Jess Wil­

son, Marion Parks and John Moss, and against each of them, 
plaintiff, I. W. Lane alleges and states:

1. That said plaintiff and each of the defendants are cit­
izens and residents of Wagoner County, State of Oklahoma; 
that the amount involved herein, exclusive of interest and 
costs exceeds the amount and value of three thousand dollars; 
that this action involves a federal question, namely, the right 
of suffrage of plaintiff under the Constitution of the United 
States, the Fourteenth and Fifteenth Amendments thereto, 
and the laws of the United States enacted pursuant thereto.

2. That the plaintiff, I. W. Lane is a male Negro citizen 
of the United States, is approximately sixty six years of age, 
was born in Talladega County, State of Alabama; that plain­
tiff is a resident and citizen of the State of Oklahoma, having 
continuously and in good faith resided in the Town of Red 
Bird, in Wagoner County, in said State since about the 1st



2 I. W. Lane v. Jess W ilson, et al.

day of January, A.D., 1908; that plaintiff now resides in, 
and continuously for more than one year next preceding the 
24th day of October 1934, hereinafter mentioned, has resid­
ed in the Election precinct in Wagoner County, Oklahoma, 
legally designated “ Gatesville Precinct No. 1” .

3. That plaintiff, I. W. Lane, has never been adjudged 
guilty of a felony or any crime; that plaintiff is not now, 
was not on October 24th, 1934, nor has he ever been confined 
in any poor house or any asylum at public expense or other­
wise ; that plaintiff is not now, nor was he ever confined in 
any public prison; that plaintiff is not a lunatic nor an idiot. 
Plaintiff further alleges that by reason of the allegations here­
in above made, he was in all particulars on the 24th day of 
October, 1934, a duly qualified elector of said State of Ok­
lahoma, according to the laws of said State, and as such was 
entitled to be registered as such elector.

4. Plaintiff further alleges that on the 24th day of Oc­
tober, 1934, the defendant, Jess Wilson, was the duly ap­
pointed, qualified and acting County Registrar of Wagoner 
County, State of Oklahoma; and on said day the defendant, 
Marion Parks, was the duly appointed, qualified and acting 
Precinct Registrar of the aforementioned precinct in Wag­
oner County, Oklahoma, designated as “ Gatesville Precinct 
No 1” , in which precinct at said time, this plaintiff was re­
siding and in which precinct plaintiff had resided for more 
than thirty days next preceding said 24th day of October, 
1934. That the defendant, John Moss, on the 24th day of Oc­
tober, 1934, was the duly elected, qualified and acting County 
Judge of Wagoner County, State of Oklahoma.

5. That under the laws of the State of Oklahoma, (Sec­
tion 5652, Okla. Stat. 1931), registration is a prerequisite to 
the right of the citizens of said State to vote in any election 
held in said State, and unless and until said plaintiff is reg­
istered, as provided by the said laws of Oklahoma, the said 
plaintiff will not be entitled to vote at any election held in the 
State of Oklahoma, and in said County and Precinct.

6. That on November the 6th, 1934, there is to be held 
in the State of Oklahoma, and in Wagoner County, according 
to the laws applicable thereto, a general election, at which 
election, Representatives to the Congress of the United States 
and State and County officers are to be voted upon, and unless



I. W. L ane v. Jess W ilson, et al. 3

said plaintiff is afforded a reasonable opportunity to be reg­
istered and is registered pursuant to the aforementioned laws 
of Oklahoma, he will be denied the fundamental and consti­
tutional right to vote at said general election in his above 
named precinct.

7. That such a denial of the right of said plaintiff to 
vote at said election for said Bepresentatives to the Congress 
and for said State and County officers, will constitute to plain­
tiff a denial of the right of suffrage as a citizen of said County 
and State and of the United States, and will constitute to 
plaintiff a denial of the equal protection of the laws, contrary 
to the Constitution and laws of the State of Oklahoma, and 
contrary to the Constitution of the United States, the Four­
teenth and Fifteenth Amendments thereto and to the laws of 
the United States enacted pursuant thereto.

8. Further, plaintiff states that in 1916 there was enacted 
by the Legislature of the State of Oklahoma, a registration 
law providing for the registration of qualified electors to vote 
in the various elections of said State and counties. It was pro­
vided in said registration law that the only qualification of an 
elector was that such elector must have been a citizen of the 
United States and of the State of Oklahoma for more than 
one year, and a resident of the County for m o r e  than six 
months and in the precinct for more than thirty days prior 
to April 30, 1916, or prior to any subsequent registration pe­
riod (Sec. 5654 Okla. Stat. 1931).

9. It was further provided in said registration law (sec. 
5654 Okla. Stat. 2931) that: “ It shall be the duty of the pre­
cinct registrars to register each qualified elector of his elec­
tion precinct who makes application between the 30th day of 
April 1916, and the 11th day of May 1916,”  * * * “ and pro­
vided that it shall be the mandatory duty of every precinct 
registrar to issue registration certificates to every qualified 
elector who voted at the general election held in this State 
on the first Tuesday after the first Monday in November, 1914, 
without the application of said elector for registration, and to 
deliver such certificate to such elector if he is still a quali­
fied elector in such precinct, and the failure to so register 
such elector who voted in such election held in November, 
1914, shall not preclude or prevent such elector from voting 
in any election in this state; etc. ’ ’ It was further provided in



said section, “ That each County election board in this State 
shall furnish to each precinct election hoard in the respective 
counties a list of the voters who voted at the election in No­
vember, 1914, and such list shall be conclusive of the right of 
such person to vote” .

10. Further, plaintiff states that during the first regis­
tration period, between April 30, 1916, and May 11, 1916, said 
plaintiff was a resident of said State, county, and precinct 
for a long time prior thereto, as set forth above; that during 
said registration period, this plaintiff made application at the 
time and in the manner required by law to the precinct reg­
istrar of said precinct mentioned herein, for registration un­
der the registration law of Oklahoma, and that the then pre­
cinct registrar in said precinct refused to register plaintiff, 
solely on account of his race, color and previous condition of 
servitude. The said plaintiff made application to the respec­
tive registrars of said precinct at each and all of the subse­
quent registration periods, and was refused registration at 
each and all of said registration periods solely on account 
of his race, color and previous condition of servitude.

11. That the respective registrars in said County and 
precincts, during the registration period in May, 1916, and 
of all subsequent registration periods respectively, informed 
said plaintiff, that they had no authority or instructions to 
register any Negroes; and the registrars of said precincts 
during each and all of said registration periods refused to 
register any Negroes, including this plaintiff, solely on ac­
count of their race, color and previous condition of servitude.

12. Further, plaintiff states that ever since the passage 
of said registration law aforesaid, and ever since the same 
became effective, the county and precinct registrars and the 
county election board of said Wagoner County have unlaw­
fully combined, confederated and conspired together, and 
have formulated and devised various schemes and plots 
whereby they have prevented and still prevent the Negro res­
idents of said Wagoner County, including particularly this 
plaintiff, from being registered in their respective precincts. 
That said conspiracy was set in motion and operation during 
the registration period between April 30, 1916, and May 11, 
1916, and has continued to operate during each and all of the 
registration periods thereafter and still continues to operate,

4 I. W. L ane y. Jess W ilson, et al.



I. W. L ake v. Jess W ilsok, et al. 5

and plaintiff further states that as a result of said conspiracy, 
it has become the general, habitual and systematic practice of 
said county registrars, including this defendant, Jess Wilson, 
and his predecessors in office, to refuse to register Negro 
residents of said Wagoner county, including the plaintiff, I.
W. Lane, and to deprive them of their right of suffrage sole­
ly on account of their race, color and previous condition of 
servitude.

13. Further, that in furtherance of the conspiracy and 
to further promote the schemes and plots aforesaid, the said 
county registrars, the county election board and the precinct 
registrars of said Wagoner County and of said precincts, have 
secretly and connivingly entered in to a pact and agreement 
among themselves whereby they have agreed not to register 
any Negro elector in said County and in said precincts, and 
the said county registrars, including the defendant, Jess Wil­
son and their predecessors in office, have given specific instruc­
tions to said precinct registrars, including the defendant, Mar­
ion Parks, not to register any Negroes in their said precincts, 
and plaintiff further states that by reason of said unlawful 
agreement and by reason of the instructions of said county reg­
istrars, including the defendant, Jess Wilson, the precinct 
registrars, including the defendant, Marion Parks, have per­
sistently refused, and still refuse to register the Negro elec­
tors in said precincts, including the precinct in which plaintiff 
resides.

14. That as part and parcel of the conspiracy aforesaid, 
and in furtherance thereof, the said county registrars and 
precinct registrars have invented, devised and set in motion 
and operation various schemes, tricks and artifices and have 
used every subterfuge to prevent the registration of Negroes 
and to deprive them of their fundamental and constitutional 
right of suffrage, to wit, said county election officials would 
intentionally fail and refuse to appoint proper registrars in 
said precincts at the proper time, and would fail to furnish 
them with sufficient blanks and registration books; said of­
ficials would wilfully and intentionally mislead and misinform 
the Negroes as to the proper identity of their respective pre­
cinct registrars; said precinct registrars would intentionally 
absent themselves from their homes and offices where the reg­
istration books are kept and would conceal themselves from 
the Negro residents; that some member of the registrar’s



family would inform the Negro applicants that the registrar 
was not at home, or was busy; that if said Negro electors 
would accidently meet said registrars, they would inform them 
that they had run out of blanks, or that they did not have the 
registration books, or that the registrar was some one else; 
or that the Negro electors had to get a Court order before they 
could be registered. That when no other excuse was available, 
said registrars would inform the Negro electors that they 
had instructions from superior officials not to register Ne­
groes and said precinct registrars would thereupon refuse to 
register said Negro electors. That some of said precinct reg­
istrars have threatened violence and serious bodily harm upon 
Negroes who duly made application for registration.

15. That pursuant to the laws of the State of Oklahoma, 
the registration period for the aforementioned election of No­
vember 6, 1931, began on October 17, 1934, and closes on the 
26th day of October, 1934. That on the 24th day of October, 
1934, this plaintiff, I. W. Lane, being then a duly qualified 
elector of said precinct, county and state aforesaid, duly pre­
sented himself to the defendant, Marion Parks, precinct reg­
istrar aforesaid, and at said time, this said plaintiff made ap­
plication to said defendant, Marion Parks, for registration 
and for a registration certificate, which said registration and 
registration certificate said Marion Parks refused said plain­
tiff solely on account of the race, color and previous condition 
of servitude of plaintiff; and at said time said Marion Parks, 
precinct registrar aforesaid, advised this plaintiff that he had 
been forbidden by said John Moss, County Judge of Wagoner 
County, Oklahoma, and by Jess Wilson, County Registrar of 
Wagoner County, Oklahoma, to register any Negroes.

16. Further, that in refusing to register this plaintiff, as 
set forth above, and in making it impossible for plaintiff to 
register and to vote in the aforementioned election, said de­
fendants were acting pursuant to the aforementioned con­
spiracy; said defendants, and each of them, were and are 
violating the rights of plaintiff, under the Constitution of 
Oklahoma, and under the Constitution of the United States, 
the 14th and 15th amendments thereto, and the laws of the 
United States enacted pursuant thereto.

17. Further, the illegal acts of the defendants Jess Wil­
son, John Moss and Marion Parks hereinabove alleged, con-

6 I. W. L ane v. Jess W ilson, et al.



stitute a violation of Section 31, Chapter 2 of Title 8 of United 
States Code (E. S. Sec. 2004). That in the violation of the 
rights of said plaintiff, said defendants, and each of them, 
were acting under color of certain statutes of the State of 
Oklahoma hereinafter mentioned, and under color of custom 
and usage in said County of Wagoner and State of Oklahoma, 
and caused said plaintiff to be deprived of rights, privileges, 
and immunities secured by the Constitution and laws of the 
United States.

18. Further, that in the illegal acts hereinabove com­
plained of, said defendants and each of them were acting- 
under the color of Chapter 29 of the Oklahoma Statutes of 
1931, and especially under color of Article 3 of said chapter, 
and under color of Section 5654 of said Article 3, Chapter 
29 of said laws of Oklahoma, 1931, and Section 5657 of said 
Article and Chapter. That said Section 5654, Article 3, Chap­
ter 29, (C. 0. S. 1921, Sec. 6252) provides as follows:

“ Eegistration—general regulations. It shall be the 
duty of the precinct registrar to register each qualified 
elector of his election precinct who makes application 
between the 30th day of April, 1916, and the 11th day of 
May, 1916, and such person applying shall at the time he 
applies to register to be a qualified elector in such pre­
cinct and he shall comply with the provisions of this act, 
and it shall be the duty of every qualified elector to regis­
ter within such time; provided, if any elector should be 
absent from the county of his residence during such period 
of time, or is prevented by sickness or unavoidable mis­
fortune from registering within the precinct registrar 
within such time, he may register with such precinct reg­
istrar at any time after the tenth day of May, 1916, up 
to and including the thirtieth day of June, 1916, but the 
precinct shall register no persons under this provision 
unless he be satisfied that such person was absent from 
the County or was prevented from registering by sick­
ness or unavoidable misfortune, as hereinbefore provid­
ed. And provided that it shall be the mandatory duty 
of every precinct registrar to issue registration certifi­
cates to every qualified elector who voted at the general 
election held in this State on the 1st Tuesday after the 
first Monday in November, 1914, without the applica-

I. W. L ane v. Jess W ilson, et al. ^



tion of said elector for registration, and, to deliver such 
certificate to such elector if he is still a qualified elector 
in such precinct and the failure to so register such elec­
tor who voted in such election held in November, 1914, 
shall not preclude or prevent such elector from voting in 
any election in this State; and provided further, that 
whenever any elector is refused registration by ant reg­
istration officer such action may be reviewed by the Dis­
trict Court of the County by the aggrieved elector by 
his filing within ten days a petition with the Clerk of 
said Court, whereupon summons shall be issued to said 
registrar requiring him to answer within ten days, and 
the District Court shall be (give) a (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; and provided further, that the 
provision of this Act shall not apply to any school dis­
trict elections. Provided further, that each County elec­
tion Board in this State shall furnish to each precinct 
election board in the respective counties a list of the 
voters who voted at the election in November, 1914, and 
such list shall be conclusive evidence of the right of such 
person to vote.” ,

and Section 5657 Oklahoma Statutes, 1931, (C. 0. S., 1921
Section 6255), provides as follows:

“ Elector—oath and requirements—exceptions—reg­
istrars’ books and records. Each qualified elector in this 
State may be required to make oath that he is a qualified 
elector in such precinct, and shall answer under oath any 
questions touching his qualifications as an elector and 
give under oath the information required to be contained 
in a registration certificate. Except in the case of a qual­
ified elector who voted at the general election held in this 
State on the first Tuesday after the first Monday in No­
vember, 1914, in which case it shall be mandatory duty 
of the precinct registrar to register such voter and de­
liver to such voter a registration certificate and the fail­
ure to so register such elector and to issue such certificate 
shall not preclude or prevent such elector from voting 
at any election in this state. If any person shall fail or 
refuse to give the information required in a registration 
certificate, or fail or refuse to answer any questions pro-

s I. W. L ane v. Jess W ilson, et al.



I. W. L ane v. Jess W ilson, et al. 9

pounded to him by said registrar touching his qualifica­
tions as an elector, such person shall not be registered 
and no certificate of registration shall be issued to him. 
If said registrar shall be satisfied that any person who 
makes application to register is a qualified elector in 
the precinct at such time, and if such person complies 
with all the provisions of this Act, then said registrar 
shall detach the original registration certificate, proper­
ly filled in and containing the information required in 
this Act, and deliver to such person such original regis­
tration certificate. Etc. ’ ’
19. Further, plaintiff alleges, upon information and be­

lief, that the above mentioned Section 5654, Okla. Stat. 1931, 
(C. 0. S., 1921, Sec. 6252,) and Sec. 5657, Okla. Stat. 1931, 
(C. 0. S., 1921, Sec. 6255) are mere subterfuges aimed ex­
clusively and directly at and against Negro citizens of the 
'United States residing in the State of Oklahoma, and fur­
ther that said laws are and were designed for the exclusive 
purpose of depriving said Negro citizens of the right of suf­
frage, and in violation of Section 6, Article 1 of the Consti­
tution of Oklahoma and also in violation of the 15th Amend­
ment of the Constitution of the United States, and in viola­
tion of the laws of the United States enacted pursuant there­
to. Said Statutes and laws are further an illegal and cunning 
attempt to achieve the illegal purpose sought by “ (The 
Amendment) Section 4a, Grandfather Clause of Article iii of 
the Constitution of Oklahoma, and to evade the effect of the 
decision of the Supreme Court of the United States, “ (Guinn 
vs. United States,”  decided June 21st, 1915, 238 U. S. 347, 59 
L. Ed. 1340.) That said State Statutes designated for the pur­
pose aforesaid were enacted on February 26, 1916, immediate­
ly after the above mentioned decision of the Supreme Court 
of the United States; and said laws provide for an unjust, 
unreasonable and illegal classification of the electors of the 
United States and of the State of Oklahoma ; they give to pre­
cinct registrars therein provided for an arbitrary and ca­
pricious discretion to deny or refuse qualified Negro electors 
the right of suffrage; and said State laws deny and abridge the 
right of Negro citizens, including this plaintiff, to vote, solely 
on account of race, color and previous condition of servitude. 
That precinct registrars of Oklahoma in general in denying 
the right to register and the right of suffrage throughout said



10 I. W. Lane y. Jess W ilson, et al.

State of Oklahoma, and the defendants hereinabove named 
in denying and refusing to permit this plaintiff to register or 
to vote, as hereinabove specified, were and are carrying out 
the patent and expressed intent and design of said State laws.

20. That in the conspiracy concocted by said defendants 
hereinabove mentioned, and the illegal acts of them perpe­
trated against the plaintiff, as set forth above, said defend­
ants violated Section 43 of Chapter 3, Title 8, TJ. S. Code (R. 
S. Section 1979). That said defendants by their said illegal 
and wrongful acts have damaged this plaintiff in the sum of 
and to the extent of Five Thousand Dollars, ($5000.00). That 
said defendants with an illegal intent, wilfully, and malicious­
ly violated the aforementioned rights of this plaintiff, and be­
cause thereof, plaintiff is entitled to a judgment against the 
said defendants and against each of them, in the sum of Five 
Thousand Dollars ($5000.00) as punitive damages.

Wherefore, plaintiff prays for judgment against said 
defendants Jess Wilson, Marion Parks, and John Moss in 
the sum of Five Thousand Dollars ($5000.00), jointly and 
severally, as actual damages, and for judgment against them 
and each of them in the further sum of Five Thousand Dol­
lars ($5000.00) as punitive damages, and for the costs of this 
action.

And said plaintiff further prays for such other and fur­
ther relief as he may be entitled to.

Dated this 26 day of October, 1934.
I. W. LANE,

Plaintiff.
CHARLES A. CHANDLER,
C. E. ROBERTSON,

Attorneys for Plaintiff.

Verification.
State of Oklahoma,
County of Wagoner— ss.

I. W. Lane of lawful age, after having been first sworn 
according to law, deposes and says that he is the plaintiff 
named in the above and foregoing petition; that he has read 
the same and is familiar with the contents thereof, and that



I. W. L ane v. Jess W ilson, et al. l l

the matters, allegations and things therein stated are true 
and correct, except as to those statements made upon infor­
mation and belief, and as to those statements he believes them 
to be true.

I. W. LANE,
Plaintiff.

Subscribed and sworn to before me this 26 day of Oc­
tober, 1934. N. J. Edwards, Notary Public. (Seal) My com­
mission expires Oct. 28, 1934.

Filed Oct. 27, 1934. W. V. McClure, Clerk.

(Caption omitted.)
Separate Answer of Defendants, Jess Wilson and 

Marion Parks.
Come now the defendants, Jess Wilson an d  Marion 

Parks, and for their answer to the plaintiff’s petition deny 
each, every and all the material allegations therein; except, 
however, such as are specifically admitted.

They admit that the defendant, Jess Wilson, was the 
County Registrar, and defendant, Marion Parks, was the Pre­
cinct Registrar, of Gfatesville Precinct No. 1, Wagoner Coun­
ty, Oklahoma, and defendant, John S. Moss, was the duly 
qualified and elected County Judge of Wagoner County, Ok­
lahoma, at the time complained of in plaintiff’s petition.

They deny that the amount involved exclusive of inter­
est and costs, exceed the amount and value of the sum of $3,~
000.00; that this action involves a Federal question, the right 
of suffrage under the Constitution of the United States, 14th 
and 15th Amendment and the laws of the United States pur­
suant thereto; that the plaintiff is a resident of Redbird, Wag­
oner County, Oklahoma, and has been such resident since 
about the 1st of January, 1908 ; that plaintiff resides and has 
continuously resided for more than one year nest preceding 
the 24th day of October, 1934, in the aforesaid election pre­
cinct, and deny that the plaintiff has never been adjudged 
guilty of any f elony or crime; that he was on the 24th day of 
October, 1934, a qualified elector of the State of Oklahoma, 
according to its laws, and was entitled to registration under 
its laws of said State.



12 I. W. L a n e  v. Jess W ilson, et al.

They deny that under the laws of the State of Oklahoma, 
registration in every instance is a pre-requisite to the right 
of citizens of the State to vote in any of all the elections held 
therein and unless registered, he will not be entitled to vote 
at any elections held in the State, County and Precinct. They 
admit that on the 6th day of November, 1934, a general elec­
tion was held at which Representatives, Congressmen, State 
and County officers were elected, but they deny that plaintiff 
was denied any fundamental and constitutional right under 
the general election laws; they further deny that by reason 
of any of the acts complained of, the plaintiff was not afforded 
the equal protection of the law and that the law or Constitu­
tion of the State of Oklahoma, or of the United States, was in 
any way abridged or offended by reason of their acts or con­
duct. They admit that in 1916, a universal registration law 
was passed and approved by proper constituted authorities, 
same being Chapter 24, Session Laws od 1918, State of Okla­
homa, and that Section 5654, Oklahoma Statutes 1931, as sub­
stantially copied in plaintiff’s petition, is true and correct. 
They deny that during the first registration period under the 
said universal registration law, and during subsequent reg­
istration periods, plaintiff made application as provided by 
law, to the proper precinct registrar of his precinct for reg­
istration; and they further deny that the precinct registrar 
of said precinct at the time mentioned, refused to register 
plaintiff solely on account of his race, color and previous con­
dition of servitude; that plaintiff made application to the reg­
istrar of his precinct at the recent precinct registration period 
and was refused regmtration solely for the reason last above 
mentioned. They deny that the respective precinct registrar 
of Gatesville Precinct No. 1, during the registration period in 
May, 1916, and subsequent registration periods, informed the 
plaintiff that they had no authority or instructions to reg­
ister negroes, givin/ as their reason that he was a negro and 
refused to register him by reason thereof. They further deny 
that ever since the passage of the aforesaid registration law, 
the county and precinct registrars and county election board 
of Wagoner County have unlawfully combined, confederated 
and conspired together and devised various schemes and plots 
preventing negroes in Wagoner County, including plaintiff, 
from being registered in their respective precincts, and deny 
such condition ever existed or set in motion between April



30th, 1916, and May 11, 1916, or at any other period, and that 
such has existed during each and all of the registration pe­
riods thereafter and that such continues operative. They deny 
it has been a general habit and custom of the county regis­
trars, including the defendant, Wilson, to refuse to register 
negroes of said county and to deprive them of their right of 
suffrage, solely on account of their race, color and previous 
condition of servitude. They further deny that in furtherance 
of any conspiracy, the county registrars and county election 
board and precinct registrars of Wagoner County, have se­
cretly and connively entered into any agreement whereby they 
would not register negroes and that the aforesaid alleged con­
spirators, including the defendants herein, have given specific 
instructions to precinct registrars, including the defendant 
Parks, not to register negroes in the respective precincts of 
Wagoner County. They deny they have refused and still re­
fuse to register negro electors in their respective precinct; 
that schemes, tricks, etc., have been used to prevent negroes 
from registering and to deprive them of their rights of suf­
frage; that the county election officials have failed and re­
fused to furnish blanks, books, etc., incident to the duties of 
said registrars, nor have the officials misled and misinformed 
the negroes as to the precinct in which they should be reg­
istered; nor have they absented themselves from home and 
office where the registration books are kept nor have they con­
cealed themselves from negroes desiring to register, nor is 
it true that members of the registrar’s family would inform 
negroes that the registrars were not at home or busy, or they 
had run out of blanks, did not have registration books; that 
the registrars were somewhere else; that the negro electors 
had to get a court order; that they had no instructions from 
superior officials and that by reason thereof, refused to reg­
ister negro electors; informed them and threatened bodily 
harm to negroes seeking registration. They deny that on the 
24th day of October, 1934, or at any other time, the defendant 
Parks refused to register plaintiff solely on account of his 
race, color and previous condition of servitude, nor did the 
said Parks advise the plaintiff that he had been forbidden by 
the defendant, John Moss, County Judge of Wagoner Coun­
ty, and Jess Wilson, County Registrar, of said County, to 
register negroes. They further deny that by reason of their 
act or conduct or that of either of them, as complained of,

I. W. L ane y. Jess W ilson, et al. 13



14 I. W. L ane v. Jess W ilson, et al.

they were acting pursuant to any conspiracy between them 
or any other persons and by reason of their acts and con­
duct, they violated any of plaintiff’s rights, particularly the 
14th and 15th Amendment of the Constitution of the United 
States and laws of the United States pursuant thereto.

Defendants admit the Statutes mentioned and quoted in 
plaintiff’s petition partly cover the duties of election officials, 
including the duties of County and Precinct Registrars, but 
deny that under any custom and habit, such officials in Wag­
oner County, deprived the plaintiff of any constitutional 
rights, but that they, in all respects, endeavor to do their 
duty as County and Precinct Registrars in accordance with 
the laws in such cases made and provided, and in accordance 
with their best understanding and knowledge thereof; that 
in the event the Statutes of the State of Oklahoma, mentioned 
by plaintiff, were void and not in force and effect, such was 
not known to them, but in this connection they deny that the 
Statutes mentioned by plaintiff are illegal and void and they 
further allege that the election laws of Oklahoma are fair and 
just, without discrimination, and applies to all alike regard­
less of race, color or previous condition of servitude, and  
therefore, deny that said election laws complained of by plain­
tiff are mere subterfuges aimed exclusively and directly at 
negro citizens, residing in the State of Oklahoma, and deny 
that they were designed and intended for the exclusive pur­
pose of depriving negro citizens of the right of suffrage, and 
such are in violation of the Constitution of the State of Ok­
lahoma and the Constitution of the United States, and the 
laws enacted pursuant thereto, and they deny that said laws 
were passed and approved in order to evade the judgment 
of the court in the case of Gfuinn vs. United States, and they 
deny that the election laws of Oklahoma are unjust and un­
just and illegal classification of electors of the State of Ok­
lahoma; that it is not true that such laws give the precinct 
registrars an arbitrary and capricious discretion to deny or 
refuse qualified electors of the right of suffrage, and that 
said election laws abridge the right of negro citizens, includ­
ing plaintiff, to vote, solely on account of race, color and pre­
vious condition of servitude.

Defendants for further answer state that if it be true 
that plaintiff has been denied registration, as claimed, that



I. W. L ane v. Jess W ilson, et al. 15

he, at all times, had the right to appeal to the District Court 
of Wagoner County, to have reviewed the action of the Pre­
cinct Registrars of which he complains, by tiling a petition 
with the Court Clerk, within ten days from such refusal, and 
wherein an expeditious hearing might have been had; like­
wise, than an appeal would lie from the District Court to the 
Supreme Court of the State of Oklahoma, in the event the 
plaintiff was illegally denied his right of suffrage. Therefore, 
is all things and matters, of which the plaintiff complains, are 
true, he has waived his statutory right as herein mentioned, 
and should not now be heard to complain and for such rea­
son should be denied relief herein.

Defendants further allege that the registration period 
complained of in plaintiff’s petition, was a period of special 
registration of newly qualified electors, at which time plain­
tiff was not entitled to be registered, even though he pos­
sessed the necessary qualifications, that is to say, that by and 
under Section 9 of the Universal Registration Laws herein 
mentioned, it is provided:

“ Any person who may become a qualified elector in 
any precinct in this State after the tenth day of May, 
1916, or after the closing of any other registration pe­
riod, may register as an elector by making application 
to the registrar of the precinct in which he is a quali­
fied voter, not more than twenty nor less than ten days 
before the day of holding any election and upon com­
plying with all the terms and provisions of this Act, and 
it shall be the duty of precinct registrars to register such 
qualified electors in their precinct under the terms and 
provisions of this Act, beginning twenty days before the 
date of holding any election and continuing for a period 
of ten days. Precinct registrars shall have no authority 
to register electors at any other time except as provided 
in this Act and no registration certificate issued by any 
precinct registrar at any other time, except as herein pro­
vided shall be valid. After the close of registration ten 
days before any election as herein provided, and after 
the close of the registration of electors on June 30, 1916, 
or after the close of any other supplemental registration, 
the precinct registrar shall, immediately after the closing 
of such registration, enter upon the precinct register the



16 I. W. L ane v. Jess W ilson, et al.

names of all persons registered during such period here­
inbefore provided, and shall deliver to the Secretary of 
the county election board the duplicate registration cer­
tificates so issued in the same manner as hereinbefore 
provided, and the secretary of the county election board 
shall receive such certificates, receipt for the same, and 
add the names of such electors in the county registration 
book in the same manner as hereinbefore provided.”  
Defendants allege that plaintiff should not be permitted 

to prosecute his action for the further reason that the grav- 
men of plaintiff’s petition is: that these defendants agreed 
and conspired to prevent his registration under the laws of 
Oklahoma, and then challenges the registration law as being 
unconstitutional and violative of the 15th Amendment of the 
Constitution of the United States and the laws of the United 
States enacted pursuant thereto. In other w o r d s ,  plaintiff 
asks the Court to punish these defendants in damages for 
their refusal to register him as an elector, under the Univer­
sal Registration Laws of the State of Oklahoma, which they 
plead is unconstitutional and without force and effect.

And defendants further deny that the plaintiff has been 
damaged in the sum of $5,000.00 or any other sum by reason 
of any act of these defendants.

Wherefore, premises considered, they pray that the pe­
tition of the plaintiff be dismissed, and that they have judg­
ment for their costs.

CHAS. G. WATTS, 
Attorney for Defendants Jess Wilson 

and Marion Parks.

State of Oklahoma,
County of Wagoner, ss.

Jess Wilson and Marion Parks, being duly sworn, on 
oath state: that each of them are one of the defendants men­
tioned in the above entitled cause of action; that they have 
read the foregoing answer and know the contents thereof 
and the statements set forth therein are true and corrects 
as they verily believe.



I. W. L ane v. Jess W ilson, et al. 17

Subscribed and sworn to before me this the . . . .  day of
January, 1935. ...................................................My commission
expires ..........................................................

Filed Jan. 12, 1935. W. V. McClure, Clerk.

(Caption omitted.)
Separate Answer of Defendant John Moss.

Comes now the defendant, John Moss, and for his sep­
arate answer to that part of plaintiffs petition which seeks 
to complain of this defendant and that only, denies each and 
every allegation in the petition which seeks to complain of 
this defendant except such as are hereinafter admitted.

1. This defendant admits that the defendant Jess Wil­
son was the County Registrar of Wagoner County, State of 
Oklahoma, on the 24th day of October, 1934; That Marion 
Parks was, on said date, the Precinct Registrar of Gatesville 
Precinct No. 1 in said Wagoner County, State of Oklahoma; 
That this defendant, John Moss, was the duly elected, quali­
fied and acting County Judge of said Wagoner County; That 
the plaintiff I. W. Lane, was a resident of Gatesville Precinct 
No. 1 in said County and State.

2. This defendant admits that pursuant to the Laws of 
the State of Oklahoma, the Registration period for the gen­
eral election to be held on November 6, 1934, began on Oc­
tober 17, 1934, and closed on the 26th day of October, 1934;

3. Further answering the allegations in paragraph fif­
teen of plaintiffs petition: “ That on the 24th day of October, 
1934, this plaintiff, I. W. Lane, being then a duly qualified 
elector of said precinct, County and State aforesaid, duly 
presented himself to the defendant, Marion Parks, Precinct 
Registrar aforesaid, and at said time, this said plaintiff made 
application to said defendant, Marion Parks, for registration 
and for a registration certificate, which said registration and 
registration certificate said Marion Parks refused said plain­
tiff solely on account of the race, color and previous condition 
of servitude of plaintiff; and at said time said Marion Parks, 
Precinct Registrar aforesaid, advised this plaintiff that he 
had been forbidden by said John Moss, County Judge of Wag­
oner County, Oklahoma, and by Jess Wilson, County Regis­
trar of Wagoner County, Oklahoma, to register any ne-



groes.” , this defendant has no knowledge but believes said 
quoted allegations to be not true, and therefore, denies same.

4. Further answering the aforesaid allegations, this de­
fendant denies that he, at any time, did or said anything to 
the Precinct Registrar, Marion Parks calculated or intended 
to prohibit or hinder the registration or the issuing of reg­
istration certificates by said Precinct Registrar to negroes, 
including plaintiff I. W. Lane, and this defendant denies that 
he has, at any time, entered into a conspiracy or pact with 
County or Precinct Registrars for the purpose of hindering 
the registration of negroes of Wagoner County.

5. This defendant further denies that plaintiff has been 
damaged in the sum of five thousand ($5000) dollars, or any 
other sum, by reason of the acts of this defendant.

6. Having thus made full answer to all the matters and 
things contained in plaintiffs petition, seeking to complain of 
this defendant, this defendant prays that the petition of plain­
tiff be dismissed as to this defendant and that he have judg­
ment for his costs in this behalf incurred.

JOHN MOSS,
Defendant.

Filed Jan. 12, 1935. W. V. McClure, Clerk.

18 I. W. L ane v. Jess W ilson, et al.

(Caption omitted.)
Reply of Plaintiff to the Joint Answer of Defendants, Jess 

Wilson and Marion Parks.
1. I. W. Lane, the above named plaintiff, shows to the 

Court that the joint answer of the defendants, Jess Wilson 
and Marion Parks, was and is filed irregularly and out of 
time, and not within the time ordered by the Court, and for 
said reason, said purported answer should be stricken from 
the files of this Court, and judgment should be rendered in 
favor of this plaintiff and against the defendants, Jess Wil­
son and Marion Parks.

2. For his reply to said joint answer of said defendants, 
the plaintiff denies each and every material allegation of said 
joint answer, except such as reallege or admit the allegations 
of plaintiff’s petition.

3. And said plaintiff realleges that this action involves



I. W. L ane v. Jess W ilson, et al. 19

an amount, exclusive of interest and costs, in excess of $3,- 
000.00; and further realleges that this action involves a Fed­
eral question; plaintiff realleges that he is and has been a 
citizen and resident of Wagoner County, Oklahoma, as alleged 
in his petition. And plaintiff further realleges that he is and 
was, as stated in his petition a qualified elector of the State of 
Oklahoma, and entitled to be registered, particulary as stated 
in his said petition.

4. Plaintiff realleges that he was denied by the defend­
ants, fundamental and constitutional rights during the regis­
tration period next preceding the general election of Novem­
ber 6, 1934.

5. Plaintiff realleges that during the first registration 
period after 1916, and at each subsequent registration period 
as stated in plaintiff’s petition, plaintiff made application for 
registration; and plaintiff realleges that the defendants and 
their predecessors conspired to and did deprive plaintiff of 
his right in the premises.

6. And plaintiff realleges that the registration laws men­
tioned in his said petition are unconstitutional, violative of 
the Constitution of the State of Oklahoma and of the United 
States, and are void, unjust and discriminatory and that said 
laws are mere subterfuges aimed exclusively and directly at 
Negro citizens of the United States and of the State of Ok­
lahoma, and against this plaintiff.

7. Further, that the acts of said defendants under color 
of said election laws are illegal and wrongful.

8. And further specifically replying to the second para­
graph of page six of said answer of said defendants, plaintiff 
admits that the above mentioned registration laws provide 
for an appeal to the District Court of Wagoner County, to 
have reviewed the action of which he complains, and by said 
law it appears that an appeal would lie from the District 
Court of said County to the Supreme Court of Oklahoma. And 
further replying to s a i d  paragraph, plaintiff alleges and 
shows that the pretended remedy of appeal provided for by 
said illegal registration laws are a phase of the sham and 
subterfuge to give said illegal laws the color and appearance 
of due process of law and of constitutionality. That under 
said laws and pretended remedies, it is and has been prac­
tically impossible for this plaintiff to obtain any relief be-



20 I. W. L ane v. Jess W ilson, et al.

cause the time provided is so short that even upon the most 
expeditious hearing, the particular election would be over be­
fore plaintiff could obtain any effectual relief, and the ques­
tion of plaintiff ’s rights would become moot.

9. Plaintiff further alleges that in Wagoner County, Ok­
lahoma, where said defendants have held proceedings involv­
ing the rights of franchise of Negro citizens of the United 
States, such proceedings have been attended by such gross 
and rank irregularities as to give same the appearance more 
of a farce than of a judicial proceeding; that in such proceed­
ings had in Wagoner County, during the month of November, 
1934, involving the rights of Negro citizens under said reg­
istration laws, the defendant, Jess Wilson, acting as County 
registrar, and the defendant, John Moss, acting as co-con­
spirator to said Jess Wilson in said matter, denied to Negroes, 
parties to said proceedings, the right to cross-examine pur­
ported witnesses produced by said defendants, and denied to 
said Negro citizens the right either to appear or to be heard 
by counsel, or to produce witnesses on their behalf.

10. Further, this plaintiff denies that he has waived any 
of his constitutional rights under said registration laws, if 
ever under said laws he had any rights; and denies that he 
should be deprived of the right to be heard in this Court.

11. Further, specifically replying to the allegations set 
forth in the first and second paragraphs of said defendants’' 
answer, this plaintiff shows that the purported classification 
of electors mentioned in said paragraph of said defendants’ 
answer is violative of the Constitutions of the State of Okla­
homa and of the United States, and also violative of the 14th 
and 15th Amendments to the latter Constitution; and that 
said purported classification is illegal, unconstitutional and 
void, and one of the means calculated by said registration 
laws to deprive Negro citizens in general, and this plaintiff 
in particular of their rights and his constitutional rights.

13. And specifically replying to the last paragraph of 
page 7 of said answer, plaintiff alleges that said paragraph 
commencing with the words “ Defendant alleges etc.” , and 
ending with the words “ Which they plead is unconstitutional 
and without force and effect” , is redundant and argumenta­
tive, and should be stricken from said answer, and further 
that the alleged unconstitutional registration laws mentioned



I. W. L ane v. Jess W ilson, et al. 21

in plaintiff’s petition, and tlie acts of the defendants pursu­
ant to the conspiracy therein complained of, are part and 
parcel of the same illegal scheme to deprive Negro citizens 
in general, and this plaintiff in particular, of their right and 
his rights under the Constitution and laws of the United 
States.

Wherefore, having fully replied to said answer of said 
defendants, this replying plaintiff renews, by reference there­
to, the prayer which he makes in his said petition. Dated, 
January 22nd, 1935.

I. W. LANE,
Plaintiff.

By CHARLES A. CHANDLER,
C. E. ROBERTSON,

Attorneys for Plaintiff.
Piled Jan. 22, 1935. W. V. McClure, Clerk. * 1

(Caption omitted.)
Reply of Plaintiff to Separate Answer of Defendant,

John Moss.
1. I. W. Lane, the above named plaintiff, shows to the 

Court that the separate answer of the defendant, John Moss, 
was and is filed irregularly, out of time, and not within the 
time ordered by the Court, and for said reason said purported 
answer should be stricken from the files of this Court, and 
judgment should be rendered in favor of this plaintiff and 
against the defendant, John Moss.

2. Further, for his reply to the separate answer of said 
defendant, John Moss, the plaintiff denies each and every 
and all and singular the material allegations of said separate 
answer, except such as reallege or admit the allegations of 
plaintiff’s petition.

3. Further, specifically replying to paragraph #3 , page 
2, of the answer of said defendant, John Moss, plaintiff re­
alleges the averments of his petition quoted by said defend­
ant in said paragraph ;#3, page 2; further, plaintiff denies 
that the defendant, John Moss, has no knowledge of said al­
legations, and denies that said defendant believes said allega­
tions to be not true. And in this connection plaintiff alleges



22 I. W. L ane v. Jess W ilson, et al.

that said defendant, John Moss, has, and at the time mention­
ed in said petition of plaintiff, had fall knowledge of the facts 
and things stated in said quoted part of plaintiff’s petition.

4. Further, specifically replying to paragraph #4 , page 
3 of the answer of said defendant, plaintiff realleges that the 
defendant, John Moss, was a party to the conspiracy men­
tioned in plaintiff’s petition, and was an active participant 
in, and movant of the acts and conduct of his co-defendants, 
Jess Wilson and Marion Parks, calculated and intended to 
prohibit and hinder the registration of Negro citizens, includ­
ing particularly this plaintiff.

Wherefore, having fully replied, said plaintiff repeats 
and renews, by reference thereto, the prayer which he makes 
in his said petition.

Dated this 22nd day of January, 1935.
I. W. LANE,

Plaintiff.
By CHARLES A. CHANDLER,

C. E. ROBERTSON,
Attorneys for Plaintiff.

Filed Jan. 22, 1935. W. V. McClure, Clerk.

(Caption omitted.)
Verdict.

We, the jury in the above-entitled cause, duly empaneled 
and sworn, upon our oaths, find the issues in favor of the de­
fendants and against the plaintiff.

J. J. Ammons,
Foreman.

Filed in open court Apr. 20, 1937. W. V. McClure, Clerk.

(Caption omitted.)
Motion for New Trial.

The above-named plaintiff, I. W. Lane, respectfully prays 
this Honorable Court to vacate and set-aside the order of 
said court, made on the 20th day of April, 1937, whereby the 
trial of said cause was taken from the jury and a verdict ad-



I. W. L ane v- Jess W ilson, et al. 23

verse to plaintiff was ordered and directed by the court; to 
set-aside said adverse verdict and the order of the court there­
on, and to grant said plaintiff a new trial herein, Plaintiff 
alleges and shows the following grounds and reasons in the 
premises, to w it:

1. During the trial of said cause the Honorable Trial 
Judge committed errors of law, prejudicial to the rights of 
said plaintiff, to which plaintiff did then and there object and 
except.

2. During the trial of said cause it was established, and 
not controverted, that in Wagoner County, Oklahoma, where 
of a total population of 22,428 inhabitants 6753 were Negroes 
(IT. 8. Official Census, 1930), during the 20 years next pro­
ceeding trial of this cause the officials of the State of Okla­
homa, administering the 1916 Registration Laws of said State 
(0. S. 1931, Sec. 5654), permitted only TWO Negro citizens 
of the United States to register and qualify as electors, al­
though many Negro citizens of the United States, including 
plaintiff Lane, residing in said County were duly qualified 
otherwise. This clearly established an abridgment and denial 
of the right to vote, on account of race and color; and also a 
violation of the 15th Article on Amendment to the Constitu­
tion of the United States. And the trial court erred in hold­
ing and instructing the jury that said Registration laws were 
valid and not unconstitutional, to which plaintiff objected and 
excepted.

3. It appearing from the face of the Oklahoma Registra­
tion laws of 1936 (0. S. 1931, Sec. 5654) that said law is an 
attempted revitalization of the illegal grandfather clause, Art. 
I ll, Sec. 4a, Oklahoma Constitution, Sec. 13450, O. S. 1931; or 
the same invalid law in a new disguise of words, and having 
the same discriminatory and unconstitutional intent, opera­
tion, and effect, being violative of the 15th amendment to the 
Constitution of the United States, the Honorable Trial Court 
erred in holding and adjudging, and in instructing the jury 
in said cause that said laws were and are valid and not uncon­
stitutional, to which plaintiff duly objected and excepted.

4. The said Registration Laws of the State of Oklahoma, 
(0. S. 1931, Sec. 5654), as made and enforced by the State, 
abridges the privileges and immunities of plaintiff Lane and 
of other citizens of the United States of his color and similar-



24 I. W. L ane v. Jess W ilson, et al.

ly situated, deprives them of liberty and property without due 
process of law, and denies them the equal protection of the 
laws; said Registration Laws are violative of the 14th Ar­
ticle of Amendment to the Constitution of the United States. 
The trial court erred in holding, adjudging, and in instruct­
ing the jury that said laws were valid and not violative of the 
said 14th Amendment.

5. It appearing that there was abundant evidence to es­
tablish that the plaintiff Lane was duly qualified to be regis­
tered and to vote as an elector in said State at the times in 
question, and that the defendants had, acting jointly and sev­
erally, wrongfully prevented his registering or voting, the 
cause should have been submitted to the jury under proper 
instructions from the court; and in refusing so to submit said 
cause to the jury with proper instructions, the trial court com­
mitted error prejudicial to the rights of plaintiff, to all of 
which plaintiff then and there saved exceptions.

Wherefore, said plaintiff, I. W. Lane, respectfully prays 
this Honorable Court to vacate and set aside said order, ver­
dict and judgment rendered and made in said cause, and to 
allow said plaintiff a new trial herein.

Dated this 23rd day of April, 1937.
I. W. LANE,

Plaintiff.
By CHARLES A. CHANDLER,

CECIL E. ROBERTSON,
Attorneys for Plaintiff.

Piled Apr. 23, 1937. W. V. McClure, Clerk.

(Caption omitted.)
Journal Entry.

This cause came on for trial at Muskogee, Oklahoma, on 
the 19th day of April, 1937, in term time of this Court, the 
plaintiff, I. W. Lane, appearing in person and by his attorneys 
Charles A. Chandler and C. E. Robertson, the defendants ap­
pearing in person and by their attorneys, Charles 0. Watts, 
Gordon Watts, and Joseph C. Stone.

And thereupon the Court heard the motion of the defend-



I. W. L ane y. Jess W ilson, e t  al. 25

ants to require the plaintiff to elect whether he would assail 
and challenge the Oklahoma statutes which provide for the 
registration of electors, upon the alleged ground of unconsti­
tutionality, or rely upon the statutes. And the Court being 
duly advised, said motion was overruled, to which ruling the 
defendants and each of them excepted. And a jury was duly 
empaneled and sworn in the cause.

And thereupon the defendants and each of them objected 
to the introduction of any evidence upon behalf of the plain­
tiff, upon the alleged ground that plaintiff’s petition fails to 
state a cause of action against the defendants, or either of 
them, which objection was by the Court overruled, to which 
ruling the defendants and each of them excepted. And the 
evidence upon behalf of the plaintiff was heard.

Whereupon the defendants and each of them demurred 
to the evidence upon behalf of the plaintiff, upon the ground 
that the evidence did not establish facts sufficient to constitute 
a cause of action against the defendants or either of them, 
which demurrer to the evidence was by the Court overruled, to 
which ruling the defendants and each of them excepted.

And the trial of the cause having continued until the 20th 
day of April, 1937, and the defendants having introduced 
their evidence, and the plaintiff having introduced his rebuttal 
evidence, and all the evidence having been heard fully by the 
Court, the parties rested. Thereupon the defendants and each 
of them moved for an instructed verdict in favor of the de­
fendants and against the plaintiff, which motion, having been 
heard by the Court, was sustained, to which ruling the plain­
tiff excepted.

And the Court having instructed the jury to return a ver­
dict against the plaintiff and in favor of the defendants, the 
jury on the 20th day of April, 1937, returned the following 
verdict, to-wit:

“ VERDICT — We the jury in the above-entitled 
cause, duly empaneled and sworn, upon our oaths, find 
the issues in favor of the defendants and against the 
plaintiff— (Signed) J. J. Ammons, Foreman.”

To which verdict the plaintiff excepted, and exceptions were 
allowed him. Whereupon the verdict was duly filed on said 
date, in open court.



And the plaintiff having filed his motion for a new trial, 
which motion came on for hearing on this the 9th day of Jnne, 
1937, a day in term time of this Court, the parties appearing 
by their respective attorneys of record, and the Court being 
duly advised,

It Is, on this the 9th day of June, 1937, Ordered, Ad­
judged and Decreed that the plaintiff’s motion for new trial 
be and the same is hereby overruled, to which the plaintiff ex­
cepts, and exceptions are allowed him.

And the verdict of the jury having been examined and 
considered by the Court, It Is Ordered, Adjudged and De­
creed that said verdict be and the same is hereby approved 
to which the plaintiff excepts, which exceptions are allowed.

Wherefore, on this the 9th day of June, 1937, It Is Fur­
ther Ordered, Adjudged and Decreed that judgment be and 
the same is hereby rendered and entered for the defendants 
and each of them, and against the plaintiff, and It Is Adjudg­
ed and Decreed that the defendants go hence without day and 
that they recover their costs herein from the plaintiff, for 
which costs let execution issue after (30) days from this date. 
To all of which the plaintiff excepts, which exceptions are 
allowed.

And thereupon in open court the plaintiff gave notice of 
his intention to appeal to the United States Circuit Court of 
Appeals for the Tenth Circuit.

Done in open court this 9th day of June, 1937.
ALFRED P. MURRAH,

Judge.

Filed in open court Jun. 9, 1937. W. V. McClure, Clerk.

26 I. W. L ane v. Jess W ilson, et al.

(Caption omitted.)
Bill of Exceptions.

Be it remembered that on the 19th day of April, 1937, a 
regular term day of the District Court of the United States 
for the Eastern District of Oklahoma, the above entitled and 
numbered cause came on for trial at Muskogee, Oklahoma, 
before the Honorable Alfred P. Murrah, Judge.

The plaintiff, I. W. Lane, appeared in person and by his



attorneys, Charles A. Chandler and C. E. Robertson: The 
defendants, Jess Wilson, John Moss, and Marion Parks, ap­
peared in person by their attorneys, J. C. Stone and Watts 
& Watts.

A  jury was duly empaneled and sworn and the trial pro­
ceeded.

In open court the defendants, by their counsel, objected 
to the introduction of any evidence, in the following words:

“ Come now defendants, and each of them, and ob­
ject to the introduction of any evidence on behalf of the 
plaintiff for the reason that the plaintiff’s petition does 
not state facts sufficient to constitute a cause of action 
against the defendants or either of them, nor does the pe­
tition state facts sufficient to entitle plaintiff to any re­
lief. By The Court. Overruled at this time. By Mr. Stone. 
Note our exceptions.”  (Page 2)

I. W. L ane v. Jess W ilson, et al. 27

Evidence on Behalf of Plaintiff.
The plaintiff, I. W. LANE, was called as a witness for 

plaintiff, and having been first duly sworn, testified, substan­
tially, as follows:

That witness, I. W. Lane, was approximately 70 years of 
age; was born in Talladega County, Alabama, and has lived 
in Oklahoma over 29 years. That witness lives in the town of 
Red Bird, Wagoner County, Oklahoma, and has lived there 
since 1908. (Page 1)

That witness voted in Alabama, and in Oklahoma in 1910 
and in 1912, but that witness has not voted since said time. 
That in every election year witness has made application for 
registration, but that witness did not vote after 1912 because 
witness could not get registered. (Page 2)

“ Was there a law in Oklahoma that prevented you 
from voting?

By Mr. Stone: Objected to as incompetent, I  doubt 
that the witness is qualified to state there was a law and 
can state what the law is. This witness is invading the 
province of the court.”

Examination by Mr. Robertson Resumed.
“ Why didn’t you vote after 1912?



28 I. W. L ane v. Jess W ilson, et al.

By Mr. Stone: Object to as incompetent. Irrelevant 
and immaterial.

By The Court: Overruled.
By Mr. Stone: Note our exceptions.”

After tbe above proceedings said witness proceeded to 
testify: That witness did not vote after 1912 because in 1914 
there was in operation the grandfather clause; and in 1916 
there was the registration law, under which witness could not 
register. That witness made application for registration in 
1916, and at the time witness had been living in Oklahoma 
since 1908; had lived in the precinct where witness now lives, 
and in Wagoner County more than six months. That plaintiff 
at said time lived in Gatesville precinct No. 1, where witness 
has lived ever since he has been in Wagoner County. (Page 4) 

That witness has never been convicted of a felony, nor 
served a term in the penitentiary, nor been an inmate of a 
poor house or public prison, nor adjudged insane. (Page 4) 
That in 1916 the registrar was a man named Workman. That 
when witness applied to said Workman for registration, said 
Workman stated that he did not have the registration books 
—He said he had had them but had returned them. (Page 5) 
That witness in 1916 made only one application to Mr. Work­
man for registration. Some of the boys that were with wit­
ness went over there: and it seems that a Mr. Dennison had 
the books. (Page 6)

That in 1918 the registrar was, as far as learned by wit­
ness, a Mr. Atterberry, whom witness told “ We come to 
register” , and he replied that he did not have any order to 
register colored people. That witness in 1920 made applica­
tion for registration to the same Mr. Atterberry, who seems 
to have held the office for two years, and at this time the 
reply of said Mr. Atterberry was that he did not have any 
orders to register colored people, but would have to see the 
County Registrar before he could do anything about it. That 
witness went to said registrar during the registration period. 
That witness tried to register in 1922, and again in 1924, and 
during every year. (Page 8)

That just before the general election in 1934, while the 
registration books were open, witness, accompanied by four 
others, went before Marion Parks, defendant, and told him



that witness and said parties desired to he registered; but 
that said Parks replied, “ Well, I was instructed by the higher- 
ups not to register any colored people” . That Parks stated 
the higher-ups were Jess Wilson, County Registrar, and John 
Moss, County Judge. That Parks did not register plaintiff 
nor give him a registration certificate. That the persons with 
said witness at the time of said application were Washington 
Taylor, J. M. Jackson, H. A. Cullam and Jim Ellis. (Page 10)

That during these times when witness attempted to find 
the registrars, witness always had trouble locating them—
‘ ‘ couldn’ hardly find them anytime” . The nature of the dif­
ficulty would be that the registrar had gone away from home. 
Witness would have to return three or four times, sometimes 
about sun-up or sun-down. That when witness would locate 
said registrars they would tell witness that they did not have 
any orders to register witness.

That in 1934 witness spoke to the County Registrar, Jess 
Wilson, defendant, about the refusal of precinct registrars 
to register witness. That witness had looked for a precinct 
registrar for three or four days and could not find one. Then 
witness went to said Mr. Wilson and inquired who had been 
appointed as precinct registrar. That Wilson replied that at 
the time he had not appointed a registrar (for said precinct) 
but that he would within a day or two. That witness request­
ed said Wilson, as County Registrar, to register witness but 
that Wilson replied that the County Registrar could not reg­
ister anyone—that a person had to register at the precinct. 
That at that time the registration books had been open three 
or four days. That said books opened twenty days before an 
election and closed ten days before the election. (Page 12) 
That several other persons went with witness when he inter­
viewed said Mr. Wilson, County Registrar.

That a day or so after witness saw Mr. Wilson, witness 
received information that the defendant, Parks, was Pre­
cinct Registrar; and witness went immediately to said Mr. 
Parks and requested of him registration; that Mr. Parks 
stated he hoped witness would not think hard of him ; Parks 
did not ask witness nor his companions, anything, nor did he 
ask if witness were a qualified elector.

On Cross Examination by Mr. Stone, this witness tes­
tified, substantially, as follows: That since 1916 witness has

I. W. L ane v. Jess W ilson, et al. 29



gone to the polls and offered to vote. Witness cannot recall 
the exact year, but he so offered to vote in Fussy Creek, where 
an election was held. Witness does not remember asking leave 
to vote in 1934 after the registration period; but that witness 
did ask leave to vote, about the year 1920.

That witness knows James L. Pace, who now lives in 
said Gatesville Precinct No. 1, but that witness did not apply 
to him for registration in the year 1916. (Page 15)

That following failure of witness in 1934 to get register­
ed, witness did not appeal to the District Court of Wagoner 
County, Oklahoma, from the decision of the registrar, but 
that witness appealed to this court (by this action). That in 
a former action in this court (involving plaintiff’s rights un­
der the 1916 registration laws) and also in former trial of this 
instant cause, the Honorable Robert L. Williams, Judge, read 
from said 1916 registration laws as follows:

‘ ‘ Such action may be reviewed by the District Court 
of the County by the aggrieved elector by his filing within 
ten days, with the Clerk of said Court, his petition, 
whereupon summons shall be issued to said registrar, re­
quiring him to answer within ten days and the District 
Court shall give an expeditious hearing, from his judg­
ment an appeal will lie at the instance of either party 
to the Supreme Court of the State as in civil cases.”  
(Page 17)

30 I. W. L ane v. Jess W ilson, et al.

J. A. CULLAM was next called as witness on behalf of 
plaintiff, and having been first duly sworn, testified, substan­
tially, as follows: That witness lives in Gatesville Precinct 
No. 1, Wagoner County, Oklahoma, and has lived there some­
thing like 25 years. That witness is a taxpayer in the County. 
That witness has voted in Oklahoma, in Muskogee County, 
about 1906, 1907 or 1908.

That witness removed from Muskogee, about 1909. That 
witness did not vote in 1916. That witness went to a regis­
trar, about 1916, to the best of his recollection, making appli­
cation for registration to a Mr. Atterberry and a Mr. Work­
man. (Page 22) That neither gave to witness a registration 
certificate: that said Mr. Atterberry told witness that Mr. 
Moss, then County Attorney, told him not to register any 
colored people until he was further instructed. And that said



Mr. Workman told witness the same thing. That neither asked 
questions about the qualification of witness. That said reg­
istrar told witness that he was told not to register any col­
ored people. That witness had not voted since 1916. (Page 25) 
That witness made application for registration in 1918; be­
lieves he made application to everybody that had the regis­
tration hooks. Witness cannot recall who the registrar was 
in 1918.

That witness made application for registration in 1934 
—he believes to Mr. Parks and Mr. Lawrence. That witness 
made application to Marion Parks for registration, but does 
not remember the exact date. That witness went to see Mr. 
Parks before going to see Mr. Lawrence. That he went with 
plaintiff Lane and was accompanied by two or three others 
whose names witness does not remember. (Page 29)

That witness and others requested Mr. Parks to register 
them. That Mr. Parks replied that the higher-ups had told 
him not to register any colored people. That this conversa­
tion took place during the registration period of 1934, at 
Park’s house, while the registration books had been open. 
That Parks stated that Mr. Wilson and Mr. Moss gave him 
these instructions about not registering colored people. That 
witness never talked to either Mr. Wilson or Judge Moss 
about this matter.

On Cross Examination, by Mr. Watts, the witness, Cul- 
lam, testified, substantially, as follows:

That witness first voted in Muskogee County about 1906, 
1907, or 1908; that in 1906 witness was living on Fourth Street 
in the City of Muskogee, and voted in the city election, prob­
ably before statehood. That witness went to Wagoner County 
in 1909, hut did not vote there. That witness and others were 
prevented by the grandfather clause from voting, hut wit­
ness does not remember how the registration ran about that 
time. That in 1916 witness applied to Workman, as Precinct 
Registrar in Gatesville Precinct No. 1, for registration; and, 
if witness remembers, he went to see Mr. Atterberry the same 
year. Mr. Atterberry said that John Moss would tell him, 
give him further instructions how to register colored people, 
but to go ahead and to register white people. (Page 32)

That witness does not think he applied to Mr. Pace as

I. W. L ane y. Jess W ilson, et al. 31



32 I. w. Lane v. Jess W ilson, et al.

registrar at said time; that witness and others started to see 
Mr. Pace, but someone told them it was no use.

That witness remembers that the registration law was 
passed immediately after the grandfather clause; and im­
mediately after that law, witness applied to Mr. Workman 
and to Mr. Atterberry. That witness applied for registration 
to every registrar, excepting possibly, Mr. Pace. That wit­
ness is not positive that the registration law was passed in 
1916. That witness started down to make application to said 
Mr. Pace and was told that he was not registrar. That wit­
ness knows Mr. Pace.

That in 1934 witness made application for registration 
to Mr. Parks, and, after that, to a Mr. Lawrence, who witness 
thought was county man (County Registrar). That witness 
first went to see Mr. Parks who told witness that he could 
not register witness because the higher-ups told him not to. 
That the higher-ups were John Moss and Jess Wilson, the 
County Registrar. It must have been during the preceding 
election when witness applied to the Mr. Lawrence. That wit­
ness went to see Jess Wilson, but never did get to see him.

That Parks was Precinct Registrar of Gatesville Precinct 
No. 1; and witness was accompanied by Mr. Lane, Joe John­
son, Washington Taylor, and Morris Allen. That witness can­
not remember the day or the month. That Mr. Parks was 
called out of his home about dark and Mr. Lane inquired if 
he was registrar, to which Mr. Parks replied that he was. 
That Lane asked him to register him, but Parks replied that 
he could not register us: that the higher-ups told him not to 
register colored people; and Parks said the higher-ups were 
Mr. Moss and Mr. Wilson. That witness did not go to see 
Mr. John Moss. Witness did not ask the registrar to register 
witness: only Lane did the talking then.

WASHINGTON TAYLOR, called as witness for plain­
tiff and having first been duly sworn, testified, substantially, 
as follows:

That witness lived in the town of Red Bird, Oklahoma, 
and has lived there about thirteen years; but has lived in the 
State of Oklahoma since about 1910, or about 27 years. That 
witness knows plaintiff Lane in this case. That in the 1934 
election witness made application to Marion Parks as regis-



tration officer, same being during the registration period be­
fore the election, and while the registration books were open. 
That witness was accompanied by plaintiff Lane, one Ellis, 
J. M. Jackson, and Mr. Cullam. That Lane inquired of Parks 
if he were registrar, and Parks answered that he was and 
stated, “ Boys, I  hate to tell you, but the higher-ups told me 
not to register no colored people” . And Mr. Parks stated that 
the higher-ups were Judge Moss and Mr. Jess Wilson. That 
Mr. Parks did not register Lane nor any of the others, al­
though they asked him to register them. That Mr. Parks did 
not ask any questions about the qualifications of said appli­
cants.

That witness has lived in Wagoner County, Oklahoma, 
since 1910, but has never voted in Oklahoma. That witness 
did not in 1916 speak to anyone about being registered. (Page 
40)

On Cross Examination by Mr. Stone, said witness testi­
fied, substantially, as follows: (41)

That witness testified before in a trial of this case on 
or about January 14, 1935, at which time witness did not 
use the word “ higher-ups” , he just called the names (Mr. 
Moss and Mr. W ilson): Mr. Parks said “ higher-ups”  and 
that would mean Mr. Moss and Mr. Wilson. That on a for­
mer trial, counsel (Mr. Stone) did not ask witness anything 
about higher-ups.

That witness has not been training for this trial, and no 
one had refreshed the memory of witness about the higher- 
ups. (42)

I. W. L ane y. Jess W ilson, et al. 33

J. M. JACKSON, called as witness for plaintiff and be­
ing first duly sworn, testified, substantially, as follows:

That witness lives at Red Bird, in Wagoner County, and 
has lived there about 28 years. That witness lives in election 
precinct, Gatesville No. 1. That witness has never voted in 
Oklahoma since the year 1911, as witness believes the date 
was.

That witness knows I. W. Lane, and in 1934 went with 
Lane, Taylor, Cullam, and Ellis to Mr. Parks. That Lane 
told Mr. Parks that he came to get registered, but that Mr. 
Parks stated that he was sorry, but he had been instructed



not to register any colored people. Mr. Lane inquired of Mr, 
Parks who had so instructed him. Parks told Lane that the 
higher-ups had so instructed him. Parks told Lane that the 
higher-ups were Mr. John Moss and Mr. Jess Wilson. That 
witness and companions were together at said time when ap­
plication for registration was made, but that Mr. Parks did 
not register any of them. That Mr. Parks asked something 
about the qualification of said applicants—they talked about 
it, but witness cannot repeat what was said. That witness did 
not see anyone else about getting registered: he did not go 
any further. (45)

On Cross Examination by Mr. Stone, the witness testi­
fied, substantially, as follows:

That witness testified on former trial of this case but 
did not use the word “ higher-ups” , said word not being asked 
for. Witness has related the conversation between Marion 
Parks just as it occurred: witness just answered what was 
asked. That witness did not consider the word “ higher-ups”  
the main part of the story. That witness has talked to the 
lawyers about the case, but not a b o u t  what his testimony 
would be at this time. That witness has talked to said law­
yers from time to time. At the command of the court, the tes­
timony of witness upon former trial was read from transcript 
thereof as follows, to w it:

“ Do you recall what Mr. Lane said to Mr. Parks? 
Well, he told him we came over to register. What did 
Mr. Parks say? Well, Mr. Parks said he couldn’t do it; 
he had been advised not to register any colored people. 
Did he say who had advised him? Yes, sir, he said that 
Mr. John Moss and Mr.—the registrar, I  can’t just call 
his name.”
That witness now remembers the use of the word, “ high­

er-ups” , because witness has thought more about what Parks 
said. (47)

On Re-direct Examination, the witness testified, substan­
tially, as follows:

That the lawyers talked to witness about this case, but 
did not advise in any way how witness should testify.

And on behalf of Plaintiff there were introduced in evi­
dence Volumes 1 and 2 of the Registration Records of Wag-

34 I. W. Lane v. Jess W ilson, et al.



oner County, Oklahoma, showing the list of electors register­
ed, over the registration periods from 1916 down to date, for 
the specific purpose of showing the number of Negroes reg­
istered during the periods, and to show the number registered 
whose names were stricken from the record. (T 51)

“ By Mr. Stone, counsel for Defendants: It is agreed, 
upon our part, that these are the records, they may be 
offered without proof of authenticity, but we object to 
the offer upon the grounds that the evidence is imma­
terial, incompetent and irrelevant, and in support of the 
objections we invoke the rule which generally prevails, 
as stated in 148 Federal Reporter, page 513. * * #

* # * # # # *

In the case of Glrainger vs. Douglas Park Jockey 
Club, decided by the 6th Circuit Court of Appeals, the 
rule being just announced: ‘ The constitutionality of a 
statute must be determined by its provisions and not by 
the manner in which it is in fact administered. ’

By The Court: Overruled.
By Mr. Stone: Do we go into the whole manner of 

administration of law in Wagoner County? It has noth­
ing to do with these persons, how they administered the 
law. He is undertaking to establish the whole effect of 
the proceedings throughout Wagoner County during the 
whole period from 1916 up to date: and against that the 
defendants object.

By The Court: I am familiar with that rule.
By Mr. Stone: Nor have they introduced evidence, 

your Honor, to connect these defendants with any mal­
administration of the law throughout this period. These 
defendants are on trial for the particular act alleged with 
respect to 1934. * * * I, therefore, now move that the al­
legations of his petition, insofar as they seek to show 
the practice in Wagoner County, Oklahoma, whereby it 
is alleged and claimed that Negroes were barred from 
registering, be stricken. (53)

By The Court: Overruled at this time.
By Mr. Stone: Note our exceptions.
By Mr. Chandler: I  have already offered it for that 

purpose. Of course, these being public records, I wish

I. W. L ane v. Jess W ilson, e t  al. 35



leave to dictate these parts into the record and withdraw 
these.

By Mr. Stone: That is all right.
By Mr. Chandler: We are not claiming damages on 

that, but it goes to the operation of the statute. * * *
By Mr. Stone: Or, you may do this if it is agreeable, 

state the general results of this, if you have counted the 
names subject to our objections, and let the reporter take 
the books and copy into the record.

By Mr. Chandler: Now, subject to the objection of 
counsel for the defendants, these records, Volumes 1 and 
2 of the Registration Records of Wagoner County, Ok­
lahoma, for the registration periods commencing in 1916, 
down to 1936, reveal this result: during the registration 
period of the year 1916 there were registered in Wagon­
er County eleven Negro electors; that there was no fur­
ther registration of a Negro elector, as shown by said 
records, until 1926; that in 1926 there was one Negro 
recorded registered. Then, in 1928, there was one Negro 
registered in Wagoner County; then, from 1928 down to 
1934 there was not a single Negro registered in Wagoner 
County, as shown by these records. And in 1934, at the 
time of which this plaintiff Lane is complaining, and at 
the time Jess Wilson was the registrar in Wagoner Coun­
ty, there were registered in said Wagoner County fifty 
Negro electors; and said County Registrar, Jess Wil­
son, struck the names of fifty Negro electors from said 
records. (55)

By Mr. Stone: To save the record, we move that 
the evidence be stricken on the grounds that it is incom­
petent-does not tend to throw any light on the issues 
now on trial.

By The Court: Overruled, subject to the same quali­
fications.

By Mr. Stone: Exceptions.”
At the request of counsel for plaintiff, the reporter mark­

ed for identification plaintiff’s exhibit #1 , being a transcript 
of proceedings had in 1934 before Jess Wilson, County Reg­
istrar, Wagoner County, Oklahoma, to which transcript coun-

36 I. W. L ane v. Jess W ilson, et al.



sel for defendants, Mr. Stone, agreed upon the authenticity 
of the document but not as to its validity.

“ By Mr. Stone: We object to this offer, your Hon­
or, as incompetent, irrelevant and immaterial; it has no 
bearing upon the issues here on trial and while I see 
nothing irregular about it—it appears to us in accord 
with the law. If there were any irregularities in that pro­
ceeding it has nothing to do with this case—with the 
rights of the parties herein.

By The Court: Overruled. It is admitted in the 
same manner and with the same conditions and qualifi­
cations as the preceeding exhibit.

By Mr. Chandler: Your Honor, please, I ask to in­
troduce this transcript also generally on the merits of 
our controversy because it shows the purpose of Judge 
Moss, County Judge, on these proceedings which we 
claim were invalid and pursuant to the conspiracy.

By Mr. Stone: I  object to that.
By The Court: Overruled. Same qualifications.”  

(This Exhibit No. 1, as to its material parts, is set forth 
in the Appendix hereto attached as part hereof.)

“ By Mr. Chandler: Your Honor, I  have here, De­
partment of Commerce Report, fifteenth (15th) census 
of the United States of 1930, * * * showing the 1930 Cen­
sus, especially Table 21, page 67, and showing the popu­
lation of Wagoner County by whites, by Negroes, and 
total population; and the population of the various town­
ships of Wagoner County.

By Mr. Stone: Objected as not material and has no 
bearing upon this case.

By The Court: Overruled.
By Mr. Stone: Note our exceptions.
By Mr. Chandler: I would like leave of the court 

to supply photostatic copy of this one page and with­
draw the document. ’ ’
To which no objection was interposed and permission 

was granted. Said census report was then introduced in evi­
dence, as Plaintiff’s Exhibit \#2, same showing, omitting un­
necessary parts, the following:

I. W. L ane v. Jess W ilson, et al. 37



38 I. W. L ake v. Jess W ilson, et al.

Plaintiff’s “ Exhibit No. 2.”
Composition and Characteristics.

Table 21—Population by sex, color, age, etc., for coun­
ties by minor civil divisions: 1930—Con.

County and Minor Civil 
Division

Total
popu­
lation

Sex Color

Male | Fe­
male White

Ne­
gro

Wagoner County.............. 22,428 11,600110,828 14,89316,753
Adams Creek township. . . 1,371 751 620 1,091 181
Blue Mound township......... 1,636 872 764 1,245 294
Cherokee township.............. 364 188 176 321 . . . .
Coal Creek township........... 1,367 721 646 1,083 256
Coweta town......................... 1,274 624 650 1,038 178
Coweta township.................. 404 210 194 369 11
Creek township..................... 1,524 784 740 1,131 315
G-atesville township.............. 2,335 1,222 1,113 1,388 920
Lone Star township............. 1,064 574 490 1,006 51
Okay town.............................. 248 129 119 165 54

Porter town........................... 525 288 237 419 106
Porter township.................... 1,885 967 918 925 939
Rpribird t o w n ................................. 218 105 113 218
Shahan township.................. 1,166 608 558 708 406
Shannon township................ 1,115 596 519 570 505
Stone Bluff township........... 918 481 437 735 131
Tullahassee town.................. 164 78 86 10 154
Tullahassee township.......... [ 1,856 9521 904 | 298 1,537
Wagoner city........................ 2,994 1,450 1,544 | 2,391 497

“ By Mr. Chandler, counsel for plaintiff: Now just 
one more request, your Honor. Since I am submitting 
these (Registration) Records to the court and not the 
jury, I wish the court also to peruse these so as to see 
the varying ages of these people who are registered, as 
the matter of age becomes important in the administra­
tion of this statute.

By The Court: I see.”
(The summary of said ages, as shown by said records, is 

set forth in Appendix hereto, and marked, “ Exhibit No. 3.” )

Pursuant to a stipulation of the parties, plaintiff Lane 
was recalled for further re-cross examination by Mr. Stone,



counsel for defendants, and upon re-cross examination plain­
tiff Lane testified, substantially, as follows:

That witness is plaintiff in this case, and does not know 
the exact population of the town of Red Bird, Oklahoma, pop­
ulation thereof being approximately two or three hundred 
people. That said town is incorporated as a town and not as 
a city. That plaintiff has not appealed to the District Court 
of Wagoner County from any of the rulings of the several 
registrars (refusing registration to plaintiff).

On Re-direct Examination, plaintiff Lane testified that 
not any white people lived in Red Bird, Oklahoma. That six 
or seven years ago plaintiff was mayor of said town of Red 
Bird.

At this point counsel for plaintiff announced in open 
court that plaintiff did rest.

“ By Mr. Stone: We wish to renew without extend­
ed argument, our motion to require (plaintiff) to elect, 
because there is a possibility at least, it might he held 
this is a proper time to present the motion. # * *

We will follow that motion by demurrer to the evi­
dence and I want to refer to one case that has been cited 
here, which we have examined carefully, in order to dis­
tinguish from the line of authorities we relied upon. That 
is the case of Meyers vs. Anderson. I now renew my mo­
tion to require him to elect, without further argument.

By The Court: I will overrule that at this time.
By Mr. Stone: Note our exceptions.
By Mr. Stone: Come now defendants and each of 

them and demur to the evidence on behalf of the plain­
tiff upon the grounds that the evidence does not sustain 
or support or establish a cause of action against defend­
ants or either of them.

By The Court: Overruled.
By Mr. Stone: Exceptions.”

I. W. L ane v. Jess W ilson, et al. 39

Evidence on Behalf of Defendants.
JAMES L. PACE, being called as a witness for defend­

ants, and having been first duly sworn, testified, substantially, 
as follows: (Direct Examination by Mr. Stone.)



40 I. W. L ane v. Jess W ilson, et al.

That witness lives at Council Hill. That in 1916 witness 
lived in Gatesville, Precinct No. 1, in Wagoner County, Ok­
lahoma. That witness was Precinct Registrar in said Pre­
cinct for the year 1916, and for the whole year, there being- 
no other registrar in said precinct at that time, witness be­
ing registrar for the entire registration period. That wit­
ness knows plaintiff Lane, and that said Lane did not in 1916 
present himself to witness for registration. (60)

On Cross Examination witness Pace testified, substan­
tially, as follows:

That witness did not register any Negroes in 1916; that 
no Negroes applied to witness in 1916 for registration, and 
that witness did not refuse any Negroes registration.

That the County Registrar for Wagoner County in 1916 
was one Noah Watts, who appointed witness as Precinct Reg­
istrar in the spring of 1916, witness not remembering the spe­
cific time; and said County Registrar had witness to sign 
the legal form (in connection with being appointed Precinct 
Registrar). That in 1916 witness had only a passing acquaint­
ance with plaintiff Lane, and can remember distinctly that 
twenty-one years ago said Lane did not apply to witness for 
registration. That witness registered all Negro voters who 
applied in that precinct; but does not remember how many 
Negroes witness registered.

S. T. DENISON, called as a witness for defendants, and 
being first duly sworn, testified, substantially, as follows: (Di­
rect Examination by Mr. Stone.)

That witness has lived in Porter, Wagoner County, Ok­
lahoma, since the 11th day of February, 1937; that in 1916 
witness l i v e d  in Gatesville Township; Gatesville Precinct 
#1 , in Wagoner County, Oklahoma. That witness believes 
James L. Pace was Precinct Registrar in that precinct dur­
ing 1916, and witness believes said Pace registered witness.

Witness produced his Registration Certificate #22, dated 
the 30th day of May, 1916, signed by James L. Pace, Regis­
trar, showing registration of said S. T. Denison, as testified 
to. Said certificate was marked “ Defendants’ Exhibit # 1 ” , 
and was introduced in evidence with no objection from plain­
tiff. The substance of said certificate being hereinabove set 
forth, same is not reproduced in this transcript.



On Cross Examination the witness, S. T. Denison, tes­
tified, substantially, as follows:

That witness will be seventy-nine years of age on June 
14, 1937; that witness lived in Gatesville, Precinct ;#1, ap­
proximately twenty-six years; he does not know who was 
Registrar in 1918, but that one W. S. Workman was Regis­
trar in 1920. That witness remembers other precinct regis­
trars but does not remember when they served. There were 
one Atterherry and one Gentry.

I. W. L ane v. Jess W ilson, et al. 41

CHRISTOPHER COLUMBUS CASEDIER, being duly 
sworn, testified on behalf of defendants, substantially, as fol­
lows :

That witness lives in Gatesville, Precinct #1 , in Wag­
oner County, Oklahoma. That in 1916 witness lived in Gates­
ville, Precinct #1 , at which time Jim Pace was Precinct Reg­
istrar. That thereafter witness left and does not know what 
took place later. Witness produced in court, without objection 
from plaintiff, his registration certificate #89, for Gatesville, 
Precinct #1 , showing that said witness, Christopher Colum­
bus Casedier, was duly registered as an elector on May 20, 
1916, said certificate being saigned by James L. Pace, Reg­
istrar. By stipulation said certificate was withdrawn. Wit­
ness testified that Mr. Pace issued said certificate.

W. M. CHARTIER, witness on behalf of defendants, be­
ing first duly sworn, testified, substantially, as follows: (Di­
rect Examination by Mr. Stone) : That witness in 1916 lived 
in Gatesville, Precinct # 1 , in Wagoner County, Oklahoma, 
at which time Mr. Pace, neighbor to witness, was Precinct 
Registrar. That witness does not know that anyone else was 
registar in said precinct at said time. That when witness was 
called to the army in the latter part of 1918, witness lost his 
registration certificate.

On Cross Examination, witness testified that he did not 
remember in what specific part of the registration period wit­
ness registered; that witness does not know whether Mr. Pace 
kept the registration books during the entire registration pe­
riod. That witness knew Mr. Pace was registrar because he



registered witness, there being no other evidence of his au­
thority as registrar.

42 I. W. L ane v. Jess W ilson, et al.

R. W. BAKER, witness for defendants, being first duly 
sworn, testified, upon direct examination by Mr. Stone, sub­
stantially, as follows. That in 1916 witness lived in Gates- 
ville, Precinct >#1, in Wagoner County, Oklahoma, at which 
time one Jim Pace, and nobody else, to the knowledge of wit­
ness, was Precinct Registrar. That said Pace registered said 
witness but that the registration certificate of witness was 
burned two years later.

On Cross Examination, the witness testified, substantial­
ly, as follows: that witness does not know how long Mr. Pace 
served as Precinct Registrar, nor does witness remember in 
what particular part of the registration period he registered.

Prom the registration record it was read that said R. 
W. Baker registered May 8,1916. That witness does not know 
whether Mr. Pace registered other electors every day or not.

LON LEE, called as a witness for defendants, being first 
duly sworn, and examined by Mr. Stone, testified, substantial­
ly, as follows:

That witness lived in 1916 in Gatesville, Precinct # 1, 
at which time Jim Pace, and nobody else, to the knowledge of 
witness, was registrar, and registered voters of said precinct. 
That witness registered in 1916, but, somehow lost his regis­
tration certificate.

STOUT ATTERBERRY was called as a witness for the 
defendants, and, being first duly sworn, testified as follows, 
(Examination by Mr. Stone): (75)

That witness lives in Gatesville, Precinct #1 , Wagoner 
County, Oklahoma, and has lived there for twenty-five years. 
That witness registered in 1916, at which time Jim Pace was 
registrar. That witness was not registrar for the year 1916, 
and witness does not believe that said Lane applied to witness 
for registration in said year, 1916.

On Cross Examination, by Mr. Chandler, witness, Stout 
Atterberry, testified, substantially, as follows:



I. W. L ane v. Jess W ilson, et ax-. 43

That witness was registrar in 1920, just before the pri­
mary election, but that witness was not registrar for the en­
tire period, said witness having served as registrar for part 
of said period. That the registration books were sent back to 
witness just before the general election, at which time witness 
was out working; and wife of witness advised witness that 
the registration books had come, but witness refused to serve 
further as registrar. That on that night or the next night, 
plaintiff Lane and others came to the home of witness to be 
registered, but that witness did not register them nor anybody 
else at said time. That the registration books were .at home of 
witness a day or two, but that someone got them while wit­
ness was absent. Witness understood later that one Mr. Work­
man got said books.

On Re-direct Examination, by Mr. Stone, the witness At- 
terberry, testified:

That witness declined to serve further as registrar in 
1920. That witness knows the man referred to as Workman, 
said Workman having lived about three miles from his home. 
That witness did not know where said Workman lived at the 
time of trial, not having seen him for several years. That 
said Workman was registrar in 1920, just before the general 
election, said Workman having succeeded witness as regis­
trar. That said time, just before the general election of 1920, 
was the first time witness knew of said Workman’s serving 
as precinct registrar in said precinct.

On Re-Cross Examination, said witness testified, sub­
stantially, as follows: that witness told the jury and court 
that when Lane came to the home of witness to be registered 
the registration books were there but that witness had not 
received them as registrar; that witness did not register any­
body, nor did he intend to register anyone. That the books 
remained there a couple of days, maybe two nights, and wit­
ness does not know who was serving as registrar while the 
registration books were at home of witness.

J. L. PACE, having been previously duly sworn, testi­
fied further, being examined by Mr. Stone, as follows:

That witness is the same Mr. Pace who testified previous­
ly in this case; that he was precinct registrar at Gatesville,



Precinct #1 , in 1916. Upon being shown page 71 from the 
registration record of Wagoner County, said witness said 
that it bore the names of a number of registered electors 
whom witness remembers registering in 1916, some of them 
having been registered in May of said year and others in No­
vember of said year.

At this juncture Defendants introduced, without objec­
tions of Plaintiff, pages 51 and 72 and one name at the top 
of 73, from Volume 1, County Register of Election, Wagoner 
County, Oklahoma, in connection with the testimony of said 
witness.

On further Cross Examination, by Mr. Chandler, the wit­
ness, Mr. Pace, testified, substantially, as follows:

That witness remembers registering Mr. Pussner, with 
whom witness was well acquainted, having known him for two 
or three years. That witness did not know how l o n g  Mr. 
Puissner had been living in said precinct, he being there when 
witness left. That said Mr. Puissner lived about two miles 
from witness all the while up to said registration. That on 
the registration certificates the age of Mr. Puissner was stated 
as forty-nine years.

That witness does not remember receiving any instruc­
tions from the County Registrar as to who was qualified to be 
registered in 1916, but witness testified that in November, 
1916, witness registered Mr. Puissner who w as forty-nine 
years of age, and a full-blood Indian.

Further, that witness registered a Mr. Childers, white, 
twenty-four years of age.

By Mr. Chandler, counsel for plaintiff:
“ While the books are here, I want it stipulated that 

the ages of these electors registered vary from twenty- 
one years old up to eighty.”
The testimony of one Jim Biggerstaff, who testified in 

the former trial of this case, was, by stipulation of parties 
in open court, read in open court as part of the evidence on 
behalf of defendants. The material substance of this testi­
mony was that witness is in the newspaper business, and has 
the custody of the files of the Wagoner County Democrat for 
the year 1916, in bound volume, same being kept as part of 
the permanent records of said newspaper. That it appears

44 I. W. Lane v. Jess W ilson, et al.



from said files and records that in said Wagoner County Dem- 
ocrate, of Wagoner County, Oklahoma, for the issue of April 
27, 1916, there was published a list of the registration officers 
for that year, as follows:

“ County registrar, Noah Watts has made the fol­
lowing appointments for precinct registrars. [Registrars 
for other precincts omitted] Gatesville Precinct #1, Jim 
Pace.”

I. W. L ane v. Jess W ilson, et al. 45

JESS WILSON, one of the defendants, being first duly 
sworn, testified, substantially, as follows:

That witness is forty-one years of age, lives at the pres­
ent time in Tulsa County, Oklahoma, but from the 3rd day 
of June, 1920, until 1935, witness lived in Porter, Wagoner 
County, Oklahoma. That in 1932 witness succeeded one Ira 
Lawrence as County Registrar of Wagoner County, and serv­
ed as such officer from 1932 until 1935.

That witness knows plaintiff, I. W. Lane, having become 
acquainted with him about 1920. That said Lane came to see 
witness about registering said Lane, before the general elec­
tion or the primary election in 1934, at which time there were 
three or four persons in the crowd with Lane. That Lane in­
quired who was going to be precinct registrar for Gatesville 
Precinct :#1, and Lane inquired if he had appointed Carl Law­
rence ; witness told said Lane that said Carl Lawrence had re­
signed as precinct registrar, but that witness would try to 
appoint another registrar on that day. That Lane inquired 
who the registrar would be and witness told Lane that it 
would be Benny Harmon, if witness could get him to serve. 
That such was the gist of the conversation with Lane; that 
Lane did not ask witness to register him; and that witness 
did not have authority to register anyone. That after this 
conversation said Lane left and did not return any more. That 
on the following day witness appointed the defendant, Marion 
Parks, as precinct registrar in Gatesville, Precinct #1, north­
west of Red Bird, Oklahoma; and said Parks, a well known 
citizen in that community, served as registrar during that 
period of registration.

That witness did not in 1934, or at any other time, in­
struct any registrar not to register Negro electors; nor did 
witness ever enter into any understanding; nor was there any-



thing of the sort discussed, to prevent the registration of col­
ored persons in Wagoner County, nor any other place. That 
witness did not ever give any instructions to Marion Parks 
about registering colored people, nor did witness direct said 
Parks to impede or hinder colored persons in their effort to 
register.

That on the morning on which witness appointed said 
Parks as precinct registrar, said Parks came in for the reg­
istration book as witness was leaving his office; that witness 
gave him the registration book and told Parks that Mr. Moss 
would instruct him in regard to the registration laws. That 
at said time Mr. Moss was County Judge.

That witness did not have any conversation, nor agree­
ment, nor understanding with Judge Moss as to what instruc­
tions he would give to Parks.

That witness had nothing to do with compiling the reg­
istration records, such being the duty of the County Clerk. 
That the only thing done by the witness, with regard to said 
registration records, was to turn in the registration certifi­
cates.

On Cross Examination, the witness, Jess Wilson, testi­
fied, substantially as follows:

That while witness was registrar some Negroes were reg­
istered. That witness did not move to strike the names of 
said Negroes from the register—witness was told to have it 
done, Judge Moss, Frank Young and one Ivan Baldridge hav­
ing asked for that to be done. That some of the persons whose 
names were stricken from the registration record were reg­
istered by a man named Goddard, whom witness had appoint­
ed as registrar. That in a majority of the cases of appoint­
ing registrars they were given commissions, but that witness 
does not believe said Goddard had a commission, said God­
dard having been appointed just by oral agreement.

That the names stricken from the registration record 
were stricken because of a higher decision on the question 
of the legality of their being competent voters. That witness, 
as County Registrar, had a hearing, and after summons were 
had upon them, and upon the evidence showing, said names 
were stricken off, because in the judgment of witness they 
were the names of illegal voters. That only four or five, out

46 I. W. Lane v. Jess W ilson, et al.



of approximately fifty-seven who were summoned, appeared. 
That witness struck the names off said record after having 
heard the evidence, basing the findings of witness, as County 
Registrar, on what he thought the evidence was.

I. W. L ane v. Jess W ilson, et al. 47

The defendant, JUDGE JOHN MOSS, being first duly 
sworn, and examined by Mr. Stone, testified on behalf of the 
defendants, substantially, as follows:

That witness is County Judge of Wagoner County, Ok­
lahoma, and defendant in this suit. That witness has been 
County Judge since January, 1933; that witness was repre­
sentative in the Legislature in 1910, becoming County Attor­
ney by appointment on the 21st or 22nd day of December, 
1919, that being the first time witness was County Attorney 
of Wagoner County. That witness was not, as formerly tes­
tified in this cause by some witnesses for plaintiff, County 
Attorney of Wagoner County in 1916. That witness did not, 
as charged in this case, enter into a conspiracy with anyone 
to deprive plaintiff Lane or other Negroes in Gatesville, Pre­
cinct #1 , of their rights or alleged rights to vote; nor did 
witness enter into any understanding, agreement, conspiracy, 
or anything of that sort with the defendants, or either of 
them, in any such manner. That witness did not ever instruct 
his co-defendant, Marion Parks, in any way whatsoever not 
to register plaintiff Lane. That witness did not ever instruct 
said Marion Parks or advise him in any way whatsoever not 
to register plaintiff or other colored persons.

That co-defendant Parks advised with witness about his 
duties as registrar prior to his service as such in 1934. That 
witness had a letter turned over to him by one Jim Bigger- 
staff, a newspaper man at Wagoner, and witness just read 
said letter to Mr. Parks and when witness was through read­
ing said letter to Parks witness told Parks that said letter 
practically stated the law as witness understood it, and as 
witness had been interpreting it since 1920. That said letter 
appeared to have been written originally by one Lowe, edi­
tor of a newspaper known as “ The Lantern” , published es­
pecially for Negroes and by Negroes. Without any objec­
tions, said letter was marked for identification, as “ Defend­
ants’ Exhibit # 2 ” , and introduced in evidence, said letter 
being as follows:



48 I. W. L ane v. Jess W ilson, et al.

“ Headquarters
Negro Democratic State Organization 

228% North Second Street 
Muskogee, Oklahoma.

June 20th, 1934 
Mr. J. M. Biggerstaff, Editor,
The Wagoner Record 
Wagoner, Oklahoma.
Dear Sir:

“ A  word from one Democratic editor to another—I 
am, as you will notice, Publicity Director of the Negro 
Democrats of the state. There has come to my attention 
that an effort will be made to discredit Negroes of the 
state in that they are forced to register as Democrats. 
I know here in this county and in other counties where 
Negroes have registered in large numbers, no efforts 
were made to force them to register as Democrats.

At the approaching registration period I hope no ef­
forts will be made in your county to force Negroes to 
register as Democrats or to prevent the few eligible un­
der the law from registering.

There will not be more than 100 in your entire coun­
ty eligible to vote at this time under the law, which only 
allows those coming of age since last registration time or 
who have moved into the state one year since last reg­
istration and, of course, have lived in the county and pre­
cinct the required time.

Negroes in this county are mostly registered Dem­
ocrats because they are anxious to have a voice in se­
lecting public officials. Certainly we would not expect 
violating our laws to begin at registration periods.

Hoping all will end well for us, we are,
Very truly yours,

C. Gr. Lowe, Editor 
The Muskogee Lantern, Negro 
Democratic N e w s p a p e r  and 
Publicity Manager Negro Dem- 
cratic State Organization.’ '



I. W. Lane v .  Jess W ilson, e t  a t ,. 49

With respect to said letter the witness, Judge Moss, tes­
tified :

“ It might be well for me to state that I didn’t read 
that long letter, to Mr. Parks. I  only read that part of 
it which referred to those whom they thought might be 
eligible to register in Wagoner County—that is, who had 
become twenty-one since the last registration, those who 
had moved into the county or had moved into his pre­
cinct with transfer certificates. I didn’t undertake to 
impress anything else in that letter, upon Mr. Parks.”
That witness merely said to Parks that said letter, or 

that part of said letter in the judgment of witness, was a true 
statement of the law; that such is still the opinion of the wit­
ness, and that such is all the directions, advice, or suggestions 
witness gave Parks at said time.

The defendant, MARION PARKS, being duly sworn, ex­
amined by Mr. Stone, testified on behalf of the defendants, 
substantially, as follows:

That witness was registrar in 1934 in Gatesville Precinct 
'#1, Wagoner County, Oklahoma. That witness knows plain­
tiff Lane. That- witness did not state to said Lane, on the 
occasion to which Lane referred, and when Lane and others 
came to the home of witness, that witness had been instructed 
by the higher-ups not to register the Negroes. That witness 
did not say anything of that sort. That witness did not tell 
Lane that witness had been instructed or advised by Judge 
Moss not to register Negroes. That witness did not tell Lane 
at said time that witness had been advised or instructed by 
defendant Jess Wilson not to register Negroes or colored per­
sons. That nothing of that sort occured.

That witness recalls Judge Moss’ referring to that letter 
when witness was in his office, Judge Moss having read to 
witness from said letter. That witness does not remember the 
exact words had with Judge Moss in said conversation, but 
witness does remember inquiring of Judge Moss about reg­
istering people who had become twenty-one years of age, and 
Judge Moss stated to witness “ You register all that have be­
come twenty-one since last registration” . That Judge Moss 
advised witness to register all whom witness thought to be 
legal voters. That at said time witness did not have any un-



derstanding, agreement, or conspiracy, or anything of that 
sort with the defendants, nor with either of them, whereby it 
was understood that witness was to prevent Negroes from 
registering. That witness does not have any malice or ill 
feeling against these colored people. That witness was act­
ing in good faith, honestly and fairly trying to follow the 
law, treating all alike, telling them the law, whether white 
or colored.

On Cross Examination, by Mr. Chandler, witness testi­
fied, substantially, as follows:

That witness did register white people from twenty-one 
years of age and up, the exact number witness being unable 
to remember, nor does witness remember their ages, nor all 
of the people registered at that time. That witness did not 
register Mr. Lane (plaintiff) because Lane had no papers 
showing he had ever registered. That witness asked him if 
he had ever registered, to which Lane replied that he had not. 
That witness told Lane, “ I can’t register you, if you have 
never registered unless you have become twenty-one since the 
last registration.”  That witness asked the white people whom 
he registered the same question. That the said white people 
had papers to prove that they were eligible voters. That the 
white electors registered by witness did not have certificates, 
they had proof they were eligible voters—they had witnesses 
to prove it. The basis of their eligibility was that they had 
been in the state one year, in the county six months, and in 
the township thirty days, witnesses meaning those electors 
who had just become twenty-one years of age and had no cer­
tificate of registration. Those over twenty-one had certifi­
cates from their precincts and they had voted. That witness 
registered eighty-six electors that proved that they had reg­
istered.

That witness did not mean to tell the court and jury that 
every person over twenty-one years of age, whom witness 
registered, was a person who had a transfer—they had proved 
that they were legal voters in different ways. Some had lived 
in the precinct different lengths of time, but there were none 
that lived in the precinct that had not registered since they 
moved in, since the last registration. All that witness reg­
istered in 1934 were those that had moved in since the last 
registration period. Those electors who moved in had to prove

50 I. W. L ane v. Jess W ilson, et al.



to witness that they were legal voters, and in other cases they 
had registration certificates, and exhibited them to witness.

On Re-direct Examination, the witness Parks, examined 
by Mr. Watts, testified further, substantially, as follows:

That other than the plaintiff Lane and those who were 
certified, no other colored persons applied to witness for reg­
istration. That Lane and his associates were together when 
they were talking to plaintiff, there being four or five of them, 
and Lane doing the talking for said colored people. That the 
others did not discuss the matter with witness. The conver­
sation between witness and Lane is all that took place.

I. W. L ane v. Jess W ilson, et al. 51

Rebuttal Testimony of Plaintiff.
WILLIAM OLIYiER, called as a witness for plaintiff, 

and being duly sworn, and examined by Mr. Robertson, tes­
tified as follows:

That witness is a preacher, sixty-eight years of age, lives 
in Red Bird, Oklahoma, and has lived there twenty-four years. 
That witness knows Lane, and during the registration period 
in 1916 plaintiff went with Lane to a man named Workman, 
who was the only registrar witness knew at that place. That 
witness did not know a man by the name of Pace.

On Cross Examination, by Mr. Stone, said witness tes­
tified :

That witness remembers Workman was the registrar in 
1916, because it was the first year witness came to Oklahoma, 
and witness went to see the registrar in the fall of the same 
year. That said Workman told witness that he was not the 
registrar but that one Mr. Denison was registrar.

Plaintiff, I. W. LANE, was recalled as a witness for 
plaintiff, and testified further :

That the statement of Mr. Parks to the effect that Parks 
said nothing to witness about an order from the higher-ups 
was false.

Both sides announced in open court that they rest.



52 I. W. L ane v. Jess W ilson, et al.

Motion of Defendants for an Instructed Verdict.
“ By Mr. Stone: The defendants now and each of 

them move for a directed verdict in favor of the defend­
ants and each of them against the plaintiff.”

Bequest for Instructions by Plaintiff.
In open court the plaintiff Lane presented to the Court, 

and requested the court to instruct the jury, as is set forth 
in the following written requests for instructions, to-wit:

Plaintiff’s Requested Instruction No.l.
Gentlemen of the jury, you are instructed that Section 

I of Article III, Section 13446 Oklahoma Statutes, 1931, pro­
vides in substance that the qualifications of an elector are 
that he must be a male citizen of the United States over the 
age of 21; that he must have resided in the State one year, 
in the county six months, and in the election precinct thirty 
days next preceding the election at which any such electors 
offer to vote.

You are further instructed that if you find from a pre­
ponderance of the evidence that the plaintiff, I. W. Lane, 
possessed such qualifications on the 24 day of October, 1934, 
and made application for registration on said day to the de­
fendant Marion Parks, he, said I. W. Lane, was entitled to 
register.

Charles A. Chandler,
C. E. Robertson,

Attorneys for Plaintiff.
Requested by Plaintiff,
Refused and excepted to 
Alfred Murrah,

U. S. District Judge.
(Filed in open Court April 20, 1937.)

Plaintiff’s Requested Instruction No. 2.
Gentlemen of the jury, you are instructed that the Okla­

homa Constitution, Section 1, of Article III, O. S. 1931, Sec. 
13446, provides as follows, to w it:



I. W. L ane y. Jess W ilson, et al. 53

‘ ‘ The qualified electors of this state shall be citizens 
of the United States, including persons of Indian de­
scent, (native of the United States), who are over the 
age of twenty-one years, and who have resided in the 
State one year, in the County six months, and in the elec­
tion precinct thirty days, next preceding the election at 
which such elector offers to vote. Provided, that no per­
son adjudged guilty of a felony, subject to such excep­
tions as the Legislature may prescribe, nor any person, 
kept in a poor house at public expense, except Federal, 
Confederate, and Spanish-American ex-soldiers or sail­
ors, nor any person in a public prison, nor any idiot or 
lunatic, shall be entitled to register and vote.”
And you are further instructed that if you find from the 

evidence that the plaintiff I. W. Lane possessed each of the 
aforesaid qualifications on the 24th day of October, 1934, and 
on said day made application to the defendant Marion Parks, 
the precinct registrar, said Lane was under the laws and Con­
stitution of Oklahoma entitled to be registered,

Charles A. Chandler,
C. E. Robertson,

Attorneys for Plaintiff.
Refused and excepted to.
Alfred Mur rah,

Trial Judge.
(Filed in open Court April 20, 1937.)

Plaintiff’s Requested Instruction No. 3.
Gentlemen of the Jury, you are instructed that Section 

1 of Article 14 of the Amendments to the Constitution of the 
United States provides as follows, to wit:

“ Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State where­
in they reside. No State shall make or enforce any law 
which shall abridge the privileges and immunities of cit­
izens of the United States, nor shall any State deprive 
any person of life, liberty, or property, without due pro­
cess of law; nor deny to any person within its jurisdic­
tion the equal protection of the laws.”



“ Section 5. The Congress shall have power to en­
force, by appropriate legislation, the provisions of this 
article. ’ ’

And that the Congress of the United States has enacted and 
passed Section 1979, R. S. which provides as follows, to wit: 

“ Section 1979. Civil action for deprivation of rights 
—Every person who, nnder color of any statute, custom, 
or usage of any State or Territory, subjects any citizen 
of the United States or other person within the jurisdic­
tion thereof to the deprivation of any rights, privileges, 
or immunities secured by the Constitution or laws, shall 
be liable to the party injured in an action at law, suit in 
equity, or other proceeding for redress.”
And the jury is further instructed that the above-quoted 

14th Amendment and act of Congress are the Supreme Law 
of the Land, and the Judges in the States are bound thereby, 
anything in the Constitution or Laws of any State to the con­
trary notwithstanding.

The jury is further instructed that Section 5654, 0. S. 
1931 part of the Oklahoma Registration of 1916, and which 
the defendants Marion Parks and Jess Wilson plead as jus­
tification for refusal of Registration to the plaintiff Lane, is, 
as administered by the State of Oklahoma and its officers, 
agents, and servants, acting under its authority, violative of 
said 14th Amendment and said Act of Congress, in that said 
Section 5654, 0. S. 1931, denies to the Negro citizens of the 
United States residing in Oklahoma and subject to its juris­
diction the equal protection of the laws: and said Section 5654, 
O. S. 1931, is unconstitutional, null and void, and does not con­
stitute any justification or defense to the officers, agents, or 
servants of said State of Oklahoma for the refusal of regis­
tration to citizens of the United States otherwise qualified for 
registration.

Charles A. Chandler,
C. E. Robertson,

Attorneys for Plaintiff.
Refused and excepted to 
Alfred Murrah,

Trial Judge.
(Filed in open Court April 20, 1937.)

54 I. W. L ane v. Jess W ilson, e t  a l .



I. W. L ane v. Jess W ilson, et al. 55

Plaintiff’s Requested Instruction No. 4.
Gentlemen of the Jury, you are instructed that the 15th 

amendment to the Constitution of the United States provides 
as follows, to wit:

“ Section 1. The right of citizens of the United States 
to vote shall not he denied or abridged by the United 
States or by any state on account of race, color, or pre­
vious condition of servitude.

Section 2. The Congress shall have power to en­
force this article by appropriate legislation. ’ ’
And you are further instructed that, pursuant to said 

15th amendment, the Congress of the United States passed 
and enacted to following acts, to w it: R. S. 2004, Sec. 31, of 
Chapter 3, Title 8, U. S. Code, which provides as follows, to 
wit:

“ Section 31. Race, color or previous condition of 
servitude 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 dis­
trict, municipality, or other territorial subdivision, shall 
be entitled and allowed to vote at all such elections, with­
out distinctions of race, color, or previous condition of 
servitude; any constitution, law, custom, usage, or reg­
ulation of any State or Territory, or by or under its au­
thority, to the contrary notwithstanding.”

And the Congress also enacted and passed R. S. Sec. 1979, 
Section 43, of Chapter 3, Title 8, U. S. Code, which provides 
as follows, to wit:

“ 43. Civil action for deprivation of rights.—Every 
person who, under color of any statute, custom or usage 
of any State or Territory, subjects any citizen of the 
United States or other person within the jurisdiction 
thereof to the deprivation of any rights, privileges, or im­
munities secured by the Constitution and laws, shall be 
liable to the party injured in an action at law, suit in 
equity, or other proceeding for redress.”
The jury is further instructed that by Article VI of the 

Constitution of the United States the above mentioned 15th 
amendment and acts of the Congress are the Supreme Law of



56 I. W. L ane v. Jess W ilson, et al.

the land, and the Judges in every State are bound thereby, 
anything in the Constitution or Laws of any State to the con­
trary notwithstanding. Further, that plaintiff has instituted 
this action under and pursuant to said acts of the Congress of 
the United States.

And the court further charges the jury that the defend­
ants, by their answer filed in this action, contend that the 
denial and refusal of registration of the plaintiff Lane during 
the registration period including the 24th day of October, 
1934, was in compliance with the 1916 Registration Laws of 
the State of Oklahoma, to wit: Sections 5652, 5654, 0. S. 
1931.

The court further charges the jury that the aforemention­
ed Section 5654, 0. S. 1931, does not constitute any defense 
to the defendants for the refusal to register said Lane, if 
the jury finds from a preponderance of the evidence that they 
or any of them did refuse him registration, for the reason 
that said Section 5654, 0. S. 1931, is invalid and void, and 
unconstitutional as being violative of the 15th amendment to 
the United States Constitution, and discriminatory against 
the Negro citizens of the United States residing in the State 
of Oklahoma.

Charles A. Chandler,
C. E. Robertson,

Attorneys for Plaintiff.
Refused and excepted to 
Alfred Murrah,

Trial Judge.
(Filed in open Court April 20, 1937.)

Plaintiff’s Requested Instruction No. 5 
Gentlemen of the Jury, it is charged by the petition of 

plaintiff herein that the defendants John Moss, Marion Parks, 
and Jess Wilson denied the plaintiff Lane the right to regis­
ter during the 1934 registration period; and that such denial 
was directly due to a long-standing conspiracy which had ex­
isted among the election officers of Wagoner County, Okla­
homa, and their successors, since 1916, and which conspiracy 
continued to exist and did exist on the 24th day of October, 
1934, among the three defendants aforenamed.



I. W. L ane v. Jess W ilson, et al. 57

In this connection, the court charges you that a conspir­
acy is a combination between or among two or more persons 
by concert of action to accomplish some unlawful purpose, or 
some lawful purpose by unlawful means.

And the court further instructs the jury, that, as a mat­
ter of law, that if it is found from a preponderance of the evi­
dence that if such conspiracy existed on the 24th day of Oc­
tober, 1934, among said defendants, Jess Wilson, Marion 
Parks, and John Moss, or any of them, and that pursuant 
thereto and in furtherance thereof, said defendants or any of 
them, hindered, obstructed or prevented members of the Ne­
gro race, including plaintiff Lane, from registering as electors 
of Wagoner County, Oklahoma, then the verdict of the jury 
should be in favor of the plaintiff Lane and against such of 
the defendants as you find from a preponderance of the evi­
dence were parties to such conspiracy, or actively participated 
therein.

Charles A. Chandler,
C. E. Robertson,

Attorneys for Plaintiff.
Refused and excepted to 
Alfred Murrah,

Trial Judge.
(Filed in open Court April 20, 1937.)

Plaintiff’s Requested Instruction No. 6.
Gentlemen of the jury, the court instructs you that if you 

find from a preponderance of the evidence that the plaintiff 
Lane is entitled to recover in this action, the amount of the 
recovery is for you to determine from all the facts in the case. 
Of course, you can not measure in dollars and cents the ex­
act amount to which he is entitled, but it is for you to say, in 
the exercise of a sound discretion, from all the facts in the 
case, without fear and without favor, what amount will rea­
sonably compensate him for the damage done him in being 
deprived of his right of franchise.

Charles A. Chandler,
C. E. Robertson,

Attorneys for Plaintiff.
Refused and excepted to



58 I. W. L ane v. Jess W ilson, et al.

Alfred Murrah,
U. S. District Judge.

(Filed in open Court April 20, 1937.)

Plaintiff’s Requested Instruction No. 7.
Gentlemen of tlie jury, the court instructs that in addi­

tion to the compensatory damages prayed for by the plaintiff 
in his petition, he also seeks to recover from the defendants, 
the sum of $5,000, as punitive damages. In this connection, the 
court charges you that punitive damages are awarded for the 
purpose of punishing the defendants for the wrongful act, 
and setting an example before the community. If then, you 
find by a preponderance of the evidence in this case, that the 
defendants, or any of them, were actuated by feelings of ill 
will and prejudice in denying plaintiff Lane the right to reg­
ister at the general election of 1934, then you will be justified 
in awarding punitive damages in an amount not exceeding 
$5,000.

Charles A. Chandler,
C. E. Robertson,

Attorneys for Plaintiff.
Refused and excepted to 
Alfred Murrah,

U. 8 . District Judge.
(Filed in open Court April 20, 1937.)

Whereupon, the jury was excused and the court heard 
extended argument from both counsel for the defendants and 
from counsel for the plaintiff, and after consideration of said 
motion by defendants fob an instructed verdict in their favor, 
and request by plaintiff for instructions to the jury, as well 
as argument of respective counsel, the court announced in 
open court that it was ready to rule thereupon and to render 
its opinion; whereupon, Mr. Chandler, counsel for plaintiff, 
moved the court to cause its decision to be reduced to writing 
and incorporated into the record therein, for the purpose of 
further objecting to said opinion and of saving exceptions 
thereto, and said request being granted, the court delivered 
its opinion, as follows:



I. W. L ane v. Jess W ilson, et al. 59

Opinion of Trial Court.
The Court is of the opinion in this case that plaintiff, 

having brought a suit for damages against the defendants 
and each of them, and that said petition or suit is sounded in 
their official acts as registration officials of the county of Wag­
oner, Oklahoma. They allege, in substance, that these officials 
conspired together, among each other, secretly and otherwise, 
to prevent the plaintiff and others from their suffrage rights. 
They invoke Section 5654, Art. 3, Chap. 29 of the laws of 
Oklahoma, 1931. The plaintiff states in his petition that said 
statute is invalid and unconstitutional because the same is 
repugnant to the Fourteenth and Fifteenth amendments to the 
Constitution of the United State and is therefore inoperative, 
and seeks to recover damages by reason of the violation of 
a right granted to the plaintiff by the Fourteenth and Fif­
teenth amendments to the Constitution of the United States.

Now they raise the question, and the sole question perti­
nent to the determination of the issues in this case, whether 
Section 5654, Compiled Ststutes 1931, is a valid statute and 
constitutional under the Fourteenth and Fifteenth Amend­
ments to the Constitution of the United States, and counsel 
relies on, throughout, the doctrine announced in the Guinn 
case and the case of Meyers vs. Anderson.

The Court has very carefully considered these two cases 
and is of the opinion that the doctrine in these cases is sound 
and undoubtedly is the law of the land, but Section 5654, Com­
piled Statutes, 1931, is not in conflict with the doctrine an­
nounced in these cases. And in arriving at that conclusion the 
Court considers that, as announced in that case, the right 
of the State to set its standards for suffrage rights are un­
disputed and undenied, so long as they do not violate the 
Fourteenth and Fifteenth Amendments. The Court, in very 
strong language, states that the suffrage right and the stand­
ards for suffrage rights is undisputed and undenied and a 
right within the sovereign rights of the various states, and in 
that decision it is stated:

“ We are of opinion that neither forms of classifi­
cation nor methods of enumeration should be made the 
basis of striking down a provision which was independ­
ently legal and therefore was lawfully enacted because 
of the removal of an illegal provision which the legal pro-



vision or provisions may have been associated. We state 
what we hold to be the rule thus strongly because we are 
of the opinion that on a subject like the one under con­
sideration involving the establishment of a right whose 
exercise lies at the very basis of government a much 
more exacting standard is required than would ordinar­
ily obtain where the influence of the declared unconsti­
tutionality of one provision of a statute upon another and 
constitutional provision is required to be fixed.”
That brings us to this question—the Court must, under 

the law, established rule and doctrine, presume the validity 
of the statute unless it is clearly shown to be invalid because 
of unconstitutionality or for other reason. The Court indulges 
in that theory and subscribes to that doctrine of law. The 
Court is called upon to say that this statute is unconstitu­
tional because it revitalizes the Grandfather Clause of the 
Constitution, which was, by the decision in Guinn vs. United 
States, declared unconstitutional.

And the Court has examined very carefully the provi­
sions of the 1916 act in the light of the defects and unconstitu­
tionality of the Grandfather Clause of the Constitution of 
the State of Oklahoma. And the Court is of the opinion that 
this act, which provides that it shall be the duty of the pre­
cinct registrar to register each qualified elector of his pre­
cinct who makes application between the 30th day of April 
and the 16th day of May, 1916, provided such person applying 
shall, at the time he applies to register, be a qualified elector 
in said precinct and who shall comply with the provisions of 
this act and it shall be the duty of every qualified elector to 
register within such time. And making provision for the reg­
istration of absentees; further making provisions for the right 
of appeal in the event that, for any reason, the right to reg­
ister is denied him, arbitrarily or otherwise, and the State it­
self setting up its own machinery by which it shall govern 
its suffrage right, and giving the right of appeal, without re­
gard to race, color or previous condition of servitude.

For this Court to say that the clause in the Fifteenth 
Amendment relating to race, color or previous condition of 
servitude was in the mind of the Legislature at the time this 
act was enacted and with the implied desire to circumvent 
the 14th and 15th amendments to the Constitution, would be

60 I. W. L ane v. Jess W ilson, et al.



going further than this Court feels it should go. And that is 
what the Court would have to say under statement of counsel 
for plaintiff.

It is stated in this Myers vs. Anderson case, and in the 
Guinn case chief Justice White in delivering the opinion o£ 
the Court stated that if no other logical conclusion could be 
drawn, then the Court w o u l d  imply that the Grandfather 
Clause was enacted specifically for the purpose of discrimi­
nating against the colored race, and it was for that reason and 
on that grounds, if the Court understands them, that grounds 
alone, that Justice White declared the Grandfather Clause un­
constitutional.

In other words, there was no other logical conclusion to 
be drawn. Now after 1916, after this decision, it became nec­
essary for the Legislature to enact a registration law. We 
would say they did. If not, people could vote indiscriminate­
ly. So it became the duty of the Governor and the Legisla­
ture and the law-making bodies of the State to enact a reg­
istration law.

Now then, to say that because the people who had voted 
in 1914 didn’t have to register under the 1916 act, extended a 
privilege to that particular class of people over other citi­
zens, electors, who didn’t vote in 1914, would amount to a 
violation of the privileges and immunities granted under the 
14th Amendment, and the race and color clause of the F if­
teenth Amendment to the Constitution, is just further than 
this Court can go.

Call the jury.
Instruction of Verdict for Defendants.

And the jury being recalled, the Honorable Trial Judge 
instructed said jury to return a verdict for and in behalf of 
defendants in said cause. And said jury, being so instructed 
by the court, returned, and filed in open court the verdict, in 
the following words and figures, (omitting caption, to w it):

Verdict of Jury.
Verdict—“ We, the jury in the above-entitled cause 

duly empaneled and sworn, upon our oaths, find the is­
sues in favor of the defendants and against the plain­
tiff. (Signed) J. J. Ammons, Foreman.”

Filed in open Court April 20, 1937.

I. W. L ane v. Jess W ilson, et al. 61



To which verdict the plaintiff excepted, and exceptions 
were allowed him.

62 I. W. L ane v. Jess W ilson, et al.

Plaintiff’s Motion for New Trial.
Thereafter, and on April 23, 1937, the plaintiff, I. W. 

Lane, filed and presented to the court his motion for a new 
trial which was, omitting caption, in the following words and 
figures, to w it:

(Caption omitted.)
Motion for New Trial.

The above-named plaintiff, I. W. Lane, respectfully prays 
this Honorable Court to vacate and set aside the order of 
said court, made on the 20th day of April, 1937, whereby the 
trial of said cause was taken from the jury and a verdict ad­
verse to plaintiff was ordered and directed by the court; to 
set aside said adverse verdict and the order of the court 
thereon, and to grant said plaintiff a new trial herein. Plain­
tiff alleges and shows the following grounds and reasons in 
the premises, to wit:

1. During the trial of s a i d  cause the Honorable Trial 
Judge committed errors of law, prejudicial to the rights of 
said plaintiff, to which plaintiff did then and there object and 
except.

2. During the trial of said cause it was established, and 
not controverted, that in Wagoner County, Oklahoma, where 
of a total population of 22,428 inhabitants 6753 were Negroes 
(U. S. Official Census, 1930), during the 20 years next pre- 
ceeding trial of this cause the officials of the State of Okla­
homa, administering the 1916 Registration Laws of said 
State (0. S. 1931, Sec, 5654), permitted only TWO Negro cit­
izens of the United States to register and qualify as electors, 
although many Negro citizens of the United States, includ­
ing plaintiff Lane, residing in said County were duly quali­
fied otherwise. This clearly established an abridgment and 
denial of the right to vote, on account of race and color; and 
also a violation of the 15th Article on Amendment to the Con­
stitution of the United States. And the trial court erred m 
holding and instructing the jury that said Registration laws 
were valid and not unconstitutional, to which plaintiff ob­
jected and excepted.



I. W. L ane v. Jess W ilson, et al. 63

3. It appearing from the face of the Oklahoma Registra­
tion laws of 1936 (0. S. 1931, Sec. 5654) that said law is an 
attempted revitalization of the illegal grandfather clanse, 
Art. Ill, Sec. 4a, Oklahoma Constitution, Sec. 13450, 0. S. 
1931; or the same invalid law in a new disguise of words, and 
having the same discriminatory and unconstitutional intent, 
operation, and effect, being violative of the 15th amendment 
to the Constitution of the United States, the Honorable Trial 
Court erred in holding and adjudging, and in instructing the 
jury in said cause that said laws were and are valid and not 
unconstitutional, to which plaintiff duly objected and excepted.

4. The said Registration Laws of the State of Oklahoma, 
(0. S. 1931, Sec. 5654), as made and enforced by the State, 
abridges the privileges and immunities of plaintiff Lane and 
of other citizens of the United States of his color and similar­
ly situated, deprives them of liberty and property without due 
process of law, and denies them the equal protection of the 
laws; said Registration Laws are violative of the 14th Article 
of Amendment to the Constitution of the United States. The 
trial court erred in holding, adjudging and in instructing the 
jury that said laws were valid and not violative of the said 
14th Amendment.

5. It appearing that there was abundant evidence to es­
tablish that the plaintiff Lane was duly qualified to be reg­
istered and to vote as an elector in said State at the times in 
question, and that the defendants had, acting jointly and sev­
erally, wrongfully prevented his registering or voting, the 
cause should have been submitted to the jury under proper 
instructions from the court; and in refusing so to submit said 
cause to the jury with proper instructions, the trial court com­
mitted error prejudicial to the rights of plaintiff, to all of 
which plaintiff then and there saved exceptions.

Wherefore, said plaintiff, I. W. Lane, respectfully prays 
this Honorable Court to vacate and set aside said order, ver­
dict and judgment rendered and made in said cause, and to 
allow said plaintiff a new trial herein.

Dated this 23rd day of April, 1937.
I. W. Lane, Plaintiff,

By Charles A. Chandler,
C. E. Robertson,

Attorneys for Plaintiff.



64 I. W. L ane v. Jess W ilson, et al.

Filed: April 23, 1937.

Order, of Court Overruling and Denying Motion for 
New Trial.

And on the 9th day of June, 1937, the aforementioned 
motion of plaintiff for new trial came on for hearing in open 
court, the respective parties being present by their respec­
tive counsel, and the court having considered said motion fox- 
new trial, denied same, and made and entered order to said 
effect, in the following words and figures, to wit:

“ And the plaintiff having filed his motion for a new 
trial, which motion came on for hearing on this 9th day 
of June, 1937, a day in term time of this court, the par­
ties appearing by their respective attorneys of record, 
and the court being duly advised,

“ It is, on this 9th day of June, 1937 ordered, ad­
judged and decreed that the plaintiff’s motion for new 
trial be and the same is hereby overruled, to which the 
plaintiff excepts, and exceptions are allowed him.”
Said order of court overruling motion of plaintiff for 

new trial, is incorporated in Journal Entry in said cause filed 
on the 9th day of June, 1937.

“ Plaintiff’s Exhibit No. 1.”
State of Oklahoma,
County of Wagoner, ss.
Before Jess Wilson, County Registrar, Wagoner County, 

State of Oklahoma : Proceedings had on application to 
strike certain names from the registration records of 
said county: November 2nd, 1934.

(Index omitted.)
(1 )

State of Oklahoma,
County of Wagoner, ss.
Before J. Wilson, County Registrar, said county and State: 

Now comes John S. Moss and Frank J. Young and John 
L. Baldridge, electors of Wagoner County, State of Oklaho­
ma, and respectfully represent to the County Registrar of 
Wagoner County, that they have reason to believe that the



I. W. L ane y. Jess W ilson, et al. 65

names attached hereto appearing upon the County Registra­
tion Book as registered voters in precinct No. 2, Gatesville 
Township, are illegally registered in the County Registra­
tion Book of Wagoner County, Oklahoma, and for reason for 
said belief, say:

That the persons so registered in the Precinct Registra­
tion Book by Mose Walker, Registrar, did not voluntarily ap­
pear in person for registration before the said Mose Walker; 
that such persons whose names are hereto attached appear­
ing as having been registered in said precinct were not eligible 
to registration on the date shown by the duplicate registra­
tion certificate in that they did not become qualified electors 
of said precinct between the 13th day of July, 1934, a regis­
tration period and the general election period beginning Oc­
tober 17th, 1934, and ending October 26, 1934; that the said 
registrar did not qualify said persons and made no effort to 
determine whether such persons were eligible to registration.

Wherefore, the undersigned applicants hereby apply in 
writing to the County Registrar of Wagoner County, to have 
all names hereto attached and registered by the said Mose 
Walker stricken from the County Registration Book kept hv 
the County Clerk of Wagoner County, Oklahoma.

John S. Moss,
Prank J. Young,
John L. Baldridge.

(2)
State of Oklahoma,
County of Wagoner, ss.

Personally appeared before me, the undersigned Notary 
Public, John S. Moss and Prank J. Young and John L. Bald­
ridge, who after being duly sworn, on oath say: That they 
have read the above and foregoing application, know the con­
tents thereof and that all matters and things set out therein 
are true to the best of their knowledge and belief.

Witness my hand and seal of office at Wagoner, this the 
29th day of October, 1934.

Laura Cantrell, Notary Public.
My commission expires Jan. 17, 1937. (Seal)



66 I. W. L ane v. Jess W ilson, et al.

Names of Registered Persons Referred to in Attached 
Application.

David Jackson, A. P. Herndon, S. T. James, Jr., James 
Moses, Tom White, Oliver Davidson, Sumner Vann, E. W. 
Jackson, Boyce Littlejohn, George Martin, John Robinett, 
Willie Fisher, D. M. Maxwell, Lindsey Smith, W. M. Walker, 
George Marshall, William Savage, Emmett Lowery, Joe 
Smith, T. H. Curtis, N. A. Manuel, Yirgie Savage, E. W. Jack- 
son, Jr., Walter H. Davis, Chas. Wensett, Minnie Wensett,
E. T. Smith, Lora Smith, Hays Gregory, John Macombe, J.
T. McBurnett, Ollie McBurnett, A. M. Marshall, Virgie Har- 
vel, Maude Hardester, Troy Hardester, Alta Hardester, Mrs. 
Jess Thomas, Gertie Duggan, Bertie Olinger, Francis Cagle, 

Mrs. B. F. Harvell, Cecil McKee, Lester Parker, W. I. Wil­
liams, M. S. Barnes, Lorine Barnes.

(3)
(Endorsed on back) v '
Precinct 2 
Gatesville Twp.
Filed
October 30, 1934.
J. Wilson
County Registrar. ^

Office of County Registrar Wagoner County, Oklahoma. 
To David Jackson, A. F. Herndon, S. T. James, Jr., 

James Moses, Tom White, Oliver Davidson, Sumner Vann,
E. W. Jackson, Boyce Littlejohn, George Martin, John Rob- 
inett, Willie Fisher, D. M. Maxwell, Lindsey Smith, \V. M. 
Walker, George Marshall, William Savage, Emmett Lowery, 
Joe Smith, T. H. Curtis, N. A. Manuel, Yirgie Savage, E. W. 
Jackson, Jr., Walter H. Davis, Chas. Wensett, Minne Wen­
sett, E. T. Smith, Lora Smith, Hayes Gregory, John Ma­
combe, J. T. McBurnett, Ollie McBurnett, A. M. Marshall, 
Virgil Harvel, Maude Hardester, Troy Hardester, Alta Har­
dester, Mrs. Jess Thomas, Gertie Duggan, Gertie Olinger, 
Francis Cagle, Mrs. B. F. Harvell, Cecil McKee, Lester Parks, 
W. I. Williams, M. S. Barnes, Greetings:

You are hereby notified that on the 30th day of October, 
1934, John S. Moss and others applied in writing to the under­
signed County Registrar of Wagoner County, Oklahoma, to 
have your name stricken from the County Registration Book, 
citing as reasons therefor that you were not eligible for reg-



I. W. L ane v. Jess W ilson, et al. 67

istration in Precinct No. 2, Gatesville Township of Wagoner 
County, State of Oklahoma, in that yon have not become a 
qualified elector during the period between the 13th day of 
July, 1934, and the General election registration period be­
ginning October 17th, 1934, and ending October 26th, 1934, and 
that there were illegal and irregular acts committed by the 
Registrar of said Precinct.

You are therefore ordered to be and appear before me 
at the Court House in the city of Wagoner, Oklahoma, on 
Friday, November 2nd, 1934, at the hour of two o ’clock p. m., 
and show cause why your name should not be stricken from 
the Registration Book as prayed for in said application sup­
ported by affidavit.

Witness my hand this 30th day of October, 1934.
J. Wilson, 

County Registrar.
Filed 4:45 p. m. Nov. 1 , 1934.
J. Wilson,
Co. Registrar.

(5)
Sheriff’s Return.

State of Oklahoma,
Wagoner County, ss.

I received this notice at 2 o ’clock p.m. on October 30th, 
and served the same on the persons named therein as protest- 
ants, between the hours of 2 o ’clock p. m. October 30th, 1934, 
and 1  o ’clock p.m. October 31, 1934, and in the manner fol­
lowing, to-wit:

David Jackson 
James Moses 
E. W. Jackson 
Willie Fisher 
W. M. Walker
T. H. Curtis 
E. W. Jackson, Jr. 
E. T. Smith
A. M. Marshall 
Mrs. Jess Thomas 
Francis Cagle 
W. I. Williams

A. F. Herndon 
Tom White 
Boyce Littlejohn
D. M. Maxwell 
William Savage 
N. A. Manuel 
Walter H. Davis 
Lora Smith 
Virgle Harvel 
Gertie Duggan 
Mrs. B. F. Harvel 
Mrs. Lorine Barnes

S. T. James, Jr. 
Oliver Davidson 
George Martin 
Lindsey Smith 
Emmett Lowery 
Virgia Savage 
Charles Wensett 
Ollie McBurnett 
Troy Hardester 
Bertie Olinger 
Cecil McKeen
M. S. Barnes



68 I. W. L ane v. Jess W ilson, et al.

and by delivering to each of them, personally, a full, true and 
complete copy of the within notice.

(6)
And

Sumner Vann 
Joe Smith 
John Macombe 
Alta Hardester

John Bobinet 
Minnie Wensett 
J. T. McBurnett 
Lester Parker

George Marshall 
Hays Gregory 
Maude Hardester

by leaving a full, true and complete copy of the within notice 
at the usual place of residence of each of them in my county, 
with a member of the family of each, over fifteen years of
age.

Clay Flowers,
Clay Flowers, Sheriff,

By Connie Murphy, Deputy.
Filed 4:45 p.m., No. 1, 1934.
J. Wilson, Co. Begistrar.

(7)
State of Oklahoma,
County of Wagoner, ss.
Before J. Wilson, County Begistrar, Said County and State: 

Now comes John S. Moss and Frank J. Young and John 
L. Baldridge, electors of Wagoner County, State of Okla­
homa, and respectfully represent to the County Begistrar of 
Wagoner County, that they have reason to believe that the 
names attached hereto appearing upon the County Eegistra- 
tion Book as registered voters in precinct No. 1, Creek Town­
ship, are illegally registered in the County Begistration Book 
of Wagoner County, Oklahoma and for reason for said be­
lief, say:

That George N. Goddard, whose name appears on cer­
tificates of registration is not a legally qualified elector in 
said precinct and could not legally act as Begistrar of said 
Precinct ; that the persons so registered by the said George
N. Goddard did not apply to the said George N. Goddard, 
in person, for registration; that such persons so named were 
not eligible to registration on the 25th day of October, 1934 
in that they did not become qualified electors of said precinct 
between the 13th day of July, 1934 and the general election 
date, October 17 to October 26, 1934; that the said purported



registrar did not qualify said persons and made no effort 
to determine whether such persons were eligible to registra­
tion.

Wherefore, the undersigned applicants hereby apply in 
writing to the County Registrar of Wagoner County to have 
all names hereto attached and registered by the said George 
N. Goddard stricken from the County Registration Book kept 
by the County Clerk of Wagoner County, Oklahoma.

John S. Moss,
Frank J. Young,
John L. Baldridge.

(8)
State of Oklahoma,
County of Wagoner, ss.

Personally appeared before me, the undersigned Notary 
Public, John S. Moss and Frank J. Young and John L, Bald­
ridge, who after being duly sworn, on oath, say: That they 
have read the above and foregoing application, know the con­
tents thereof and that all matters and things set out therein 
are true to the best of their knowledge and belief.

Witness my hand and seal of office at Wagoner, this the 
29th day of October, 1934.

Laura Cottrell, Notary Public. 
My commission expires Jan. 17, 1937. (Seal)

Names of Registered Persons Referred to in Attached 
Application.

Matt Williams, Louis Jonas, Winnie Jonas, Louise Jonas, 
Lois Ted Jonas, W. M. Mardon, Betty Taylor, Jim Badgett, 
Lester Anderson, Sam Gage, Lizzie Bagett, Emma Harrison, 
L. J. Robinson, Willie Lane, Wilma Jackson, Mose Jackson, 
Clementine Jackson, Verneice Jackson. Carrie Gage, Ira Wil­
liams, Aggie Williams. Janey Robinson, Cade Robinson, 
Rhoda Robinson, Hallie Anderson, Decader Robinson, Wil­
liam Markham, Mrs. Atley Hood, Atley Hood.
(Endorsed on back)
Precinct 1 . Creek Township.
Filed October 30, 1934.
J- Wilson, County Registrar.

* I. W. L ane v. Jess W ilson, et al. 69



70 I. W. L ane v. Jess W ilson, et al.

(9)
Office of County Registrar, Wagoner County, Oklahoma.

T o : Matt Williams, Louis Jonas, Winnie Jonas, Louis 
Jonas, Lois Ted Jonas, W. M. Mardon, Betty Taylor, Jim Bag- 
ett, Lester Anderson, Sam Gage, Lizzie Bagett, Emma Har­
rison, L. J. Robinson, Willie Lane, Wilma Jackson, Mose Jack- 
son, Clementine Jackson, Verneice Jackson, Carrie Gage, Ira 
Williams, Aggie Williams, Janey Robinson, Cade Robinson. 
Rhoda Robinson, Hallie Anderson, Deeder Robinson, William 
Markham, Mrs. Atley Hood, Atley Hood; Greeting:

You are hereby notified that on the 30th day of October, 
1934, John S. Moss and others applied in writing to the under­
signed County Registrar of Wagoner County, Oklahoma, to 
have your name stricken from the County Registration Book, 
citing as reasons therefor that you were not eligible for reg­
istration in Precinct No. 1, Creek Township of Wagoner Coun­
ty, State of Oklahoma, in that you have not become a qualified 
elector during the period between the 13th day of July, 1934, 
and the general election Registration period beginning Octo­
ber 17th, 1934 and ending October 26th, 1934, and that there 
were illegal and irregular acts committed by the Registrar of 
said precinct.

You are therefore ordered to be and appear before me 
at the Court House in the City of Wagoner, Oklahoma, oil 
Friday, November 2, 1934, at the hour of two o ’clock p.m., 
and show cause why your name should not be stricken from 
the Registration Book as prayed for in said application sup­
ported by affidavit.

Witness my hand this 30th day of October, 1934.
J. Wilson, 

County Registrar.
Filed 4:45 p.m., Nov. 1, 1934,
J. Wilson, Co. Registrar.

(10)
Sheriff’s Return.

State of Oklahoma,
Wagoner County, ss.

I received this notice at 5 o ’clock p.m. on October 30th, 
and served the same on the persons named therein as protest- 
ants, between the hours of 5 p.m. o ’clock October 30th, 1934,



I. W. Lane v. Jess W ilson, et al. 71

and 1 o ’clock p.m., October 31st, 1934, and in the manner fol­
lowing, to-wit:

Matt Williams 
Louise Jonas 
Lester Anderson 
Emma Harrison 
Wilma Jackson 
Verneice Jackson 
Aggie Williams 
Hallie Anderson

Louis Jonas 
Lois Ted Jones 
Sam Gage,
L. J. Eobinson 
Mose Jackson 
Carrie Gage 
Janey Eobinson 
Atley Hood

Winne Jonas 
W. M. Mardon 
Lizzie Bagett 
Willie Lane, 
Clementine Jackson. 
Ira Williams 
Bkoda Eobinson 
Mrs. Atley Hood

by delivering to each of them, personally, a full, true and com­
plete copy of the within notice.
And

Betty Taylor Jim Bagett Deeader Eobinson
William Markham Mose Jackson

by leaving a full, true and complete copy of the within notice 
at the usual place of residence of each of them in my county, 
with a member of the family of each, over fifteen years of 
age.

Clay Flowers,
Clay Flowers, Sheriff,

By J. Beard, Deputy.
(Endorsed)
Filed 4:45 p. m., Nov. 1, 1934.
J. Wilson, Co. Eegistrar.

(11)
Wagoner County,
State of Oklahoma, ss.
Proceedings had and done at Wagoner, Wagoner County, Ok­

lahoma, on the 2nd day of November, 1934, before Mr. 
Jess Wilson, County Eegistrar of Wagoner County, Ok­
lahoma: Said hearing being had upon hearing applica­
tion to strike certain registration certificates from the 
records of the County Clerk of Wagoner County, Okla­
homa :
By Mr. Wilson: How many of these clients do you have

here.
Mr. Chandler: Now are you ready to commence. 
Mr. Wilson: Yes.



72 I. W. L ane v. Jess W ilson, et al.

Mr. Chandler: I want the record to show that I, Charles 
A. Chandler and Cecil E. Robertson, appear here on behalf 
of these electors named in the affidavit as residing in Pre­
cinct Number One, Creek Township, Wagoner County, Ok­
lahoma, and especially on behalf of Louis Jonas, Winnie 
Jonas, Louise Jonas, Lois Ted Jonas, Wilma Jackson, Mose 
Jackson, Clementine Jackson, Verneice Jackson, Carrie Gage, 
Ira Williams, Aggie Williams, Janey Robinson, Cade Robin­
son, Rhoda R o b i n s o n ,  Hallie Anderson, Decater Robinson, Wil­
liam Markham, and we appear specially for the sole purpose of 
objecting to this hearing and procedure for the following rea­
sons, to-wit: First, that Jess Wilson, County Registrar, is dis­
qualified to conduct or entertain this hearing for the reason or 
by reason of his being a defendant in a suit filed on or about 
October 26th in the United States District Court for the East­
ern District of Oklahoma, where one Lane is plaintiff and 
said Jess Wilson, one John Moss and Marion Parks are de­
fendants; For the further reason that said County Registrar 
has no jurisdiction in said matter; for the further reason no 
proper or legal notice has been served, given or proven as re­
quired by law, and for the further that the petition and_ af­
fidavit upon which this procedure is being had is insufficient 
in law; and for the further reason that the Statutes under 
which this procedure is had violates the 14th Amendment 
and the 15th Amendment to the Constitution of the United 
States, violates the laws enacted pursuant thereto, and also 
violates Section Six of Article One of the Constitution of Okla­
homa. And for the following reason, that the proceeding is 
not being had or entertained in good faith. That is all.

Mr. John Moss: Is that all you appear for, for that rea­
son.

Mr. Chandler: Yes.
Mr. John Moss: Then you might excuse all of us and 

hear it.
Mr. Wilson: How many of your defendants are there 

here.
Mr. Chandler: Of those I have just named.
Mr. Wilson: Yes.
Mr. Chandler: I don’t know.
Mr. Wilson: All right. We will excuse you gentlemen



and call Mat Williams.—You gentlemen are excused along 
with Judge Moss.

Mr. Chandler: No sir: I wish to insist upon being pres­
ent at this hearing on these people I have just named, as 
their attorney.

Mr. Wilson: We will not accept any cross examination, 
it is just merely to thrash it out to see whether they are legal 
voters, legally registered. We could go ahead with cross ex­
amination and prolong it for two weeks, but there is no ne­
cessity for that, just to see if the precinct registrar has car­
ried out his acts as he should.

(13)
Mr. Chandler: You understand there is nothing personal 

about this. I  just insist upon representing these people, and 
if you insist upon me not being here I wish to make that a 
matter of record and object to that procedure.

Mr. Wilson: I don’t see why they should have legal ad­
vice on the questions we intend to ask them.

Mr. Chandler: It is my position that citizens of Okla­
homa and of the United States have a right to be represented 
by counsel in any matter or hearing wherein their property 
or political rights are involved, and, of course, it is up to the 
Court or the Registrar to exclude counsel, but it will be over 
my protest, and then, of course, I will save my exceptions. 
I will ask you to rule on that.

Mr. Wilson: Well, I  am going to exclude you.
Mr. Chandler : To which I save an exception on behalf 

of these we represent, and on behalf of all of the electors of 
these precincts. These I just mentioned. Will you allow me 
an exception to that ruling.

Mr. Wilson: You can go on out.
Mr. Chandler: Will you allow me an exception.
Mr. Wilson: Exception to what.
Mr. Chandler: To the objection I have just made, and I  

further ask the County Registrar for leave to have this en­
tire proceeding reported by Earl Goad who is a Court Report­
er in this County.

Mr. Wilson: Who have you got, Connie.
Mr. Chandler: Will you rule on that.

I. W. L ane y. Jess W ilson, et al. 73



74 I. W. L ane v. Jess W ilson, et al.

Mr. Wilson: Why yes, that is all right, but we don’t 
need you in here, I  don’t think.

Mr. Chandler: All right, thanks.
(14)

Whereupon: Jim Bagett, being first duly sworn by the 
County Registrar to testify to the truth, the whole truth and 
nothing but the truth in said matter, is examined and testi­
fied as follows, to-wit:

(Further proceedings, as shown in transcript, omitted 
herefrom.)

Plaintiff’s “ Exhibit No. 3” .
Summary of ages of electors registered in Gatesville elec­

tion Precinct No. 1, of Wagoner County, State of Okla­
homa, during registration period of 1934, as shown by 
the registration record of Wagoner County, Oklahoma, 
introduced in evidence by plaintiff on trial:
Age of No. of

Electors Electors
21 yrs. 18
22 yrs. 18
23 yrs. 8
24 yrs. 7
25 yrs. to 29 yrs., both inclusive 23
30 yrs. to 34 yrs., both inclusive 18
35 yrs. to 39 yrs., both inclusive 14
40 yrs. to 44 yrs., both inclusive 15
45 yrs. to 49 yrs., both inclusive 9
50 yrs. to 59 yrs., both inclusive 10
60 yrs. and over 9

Total 149

The foregoing Bill of Exceptions contains all the ma­
terial evidence offered and received on the trial o f said cause, 
including all rulings made during the course of said trial 
which were excepted to by each of the parties, and all excep­
tions allowed by the court.

CHARLES A. CHANDLER,
Attorney for Plaintiff’



I. W. L ane v. Jess W ilson, et al. 75

Notice of Filing Bill of Exceptions 
and

Notice of Hearing on Settlement of Bill.
To the Defendants, Jess Wilson, John Moss, and Marion 

Parks; and Joseph C. Stone and Watts and Watts, Esquires, 
attorneys for said defendants.

You will please take notice that the plaintiff, I. W. Lane, 
in the above-entitled action, filed in the office of the Clerk of 
the District Court for the Eastern District of Oklahoma, on 
the 2nd day of September, 1937, his proposed Bill of Excep­
tions in said cause; that a copy of said Bill of Exceptions, with 
a copy of said notice, is herewith served upon you.

And please take further notice that said plaintiff, I. W. 
Lane, will bring on for settlement his proposed Bill of ex­
ceptions herein, here-in-above mentioned, at the Court Room 
of the United States District Court for the Eastern District 
of Oklahoma, in the Federal Building in the City of Musko­
gee, Oklahoma, on the seventh (7th) day of September, 1937, 
at the hour of Nine (9) o ’clock a.m., or as soon thereafter as 
counsel can be heard.

Dated this 2nd day of September, 1937.

CHARLES A. CHANDLER,
Attorney for Plaintiff, Lane.

Acknowledgment of Service of Proposed Bill of Exceptions, 
and of Notice of Filing and of Settling of Same.

The defendants, Jess Wilson, John Moss, and Marion 
Parks, by their attorney of record herein, hereby acknowledge 
service upon them of the foregoing proposed Bill of Excep­
tions, and of the foregoing notice of filing and of settling of 
same; and also of receipt of copies thereof.

Dated this 2nd day of September, 1937.

JOS. C. STONE, 
Attorney for Defendants.

(Caption omitted.)
Stipulation for Settling Bill of Exceptions 

Come now, I. W. Lane, plaintiff, by Charles A. Chandler, 
nis attorney of record herein, and the defendants, Jess Wil­



son, John Moss and Marion Parks, by Joseph C. Stone, and 
Chas. G. Watts & Gordon Watts, their attorney of record, 
and agree and stipulate that the above and foregoing Bill 
of Exceptions, filed in the above-named court on the second 
day of September, 1937, contains all of the material evidence 
given and proceedings had upon the trial of this action and 
is in all respects correct- and said parties do further agree 
and stipulate that, without further notice to either of them, 
same may be approved, allowed, and settled by the trial 
judge, and made part of the record herein.

Dated this 8th day of September, 1937.
CHARLES A. CHANDLER,

Attorney for Plaintiff.
JOSEPH C. STONE,
CHAS. G. WATTS,
GORDON WATTS,

Attorneys for Defendants, Jess Wil­
son, John Moss, and Marion Parks.

Filed Sep. 8, 1937. W. V. McClure, Clerk.

76 I, W. L ane y. Jess W ilson, et ae.

(Caption omitted.)
Order Approving, Allowing, and Settling Bill of Exceptions.

The foregoing Bill of Exceptions was filed with the Clerk 
of this Court on the Second Day of September, 1937, within 
the time for the filing of said Bill; and the same contains 
all of the material evidence given and proceedings had upon 
the trial of this action, and is in all respects correct, and same 
is hereby approved, allowed, and settled and made part of 
the record herein.

Dated this 8th day of September, 1937.
ALFRED P. MURRAH, 
United States District Judge.

Filed Sep. 8, 1937. W. V. McClure, Clerk.
Filed Sep. 2, 1937. W. V. McClure, Clerk.

(Caption omitted.)



I. W. L ane v. Jess W ilson, et al. 77

Petition for Appeal.
To the Honorable Alfred P. Murrah, United States District 

Judge, and Judge of the trial of the above cause:
I. W. Lane, plaintiff in the above-entitled and numbered 

cause, respectfully shows that at the trial thereof this court 
instructed and directed the trial jury therein to render and 
return a verdict finding the issues in favor of the defendants, 
Jess Wilson, John Moss, and Marion Parks, and against this 
plaintiff; and that pursuant to said instruction and direction 
of the court said jury did return and render such verdict 
which was on the 20th day of April, A. D. 1937, duly filed in 
open court during the trial of said cause; to all of which this 
plaintiff duly objected and saved exceptions.

That on the 9th day of June, A. D. 1937, and in pursuance 
of the aforementioned verdict, ordered, instructed, returned, 
rendered, and filed as aforesaid, this court rendered and en­
tered an order and judgment in favor of the aforenamed de­
fendants and against this plaintiff, and dismissing, with preju­
dice, the petition of plaintiff herein, to all of which this plain­
tiff duly objected and excepted.

Further, that on the 23rcl day of April, A. D. 1937, and 
within three days after the aforementioned adverse verdict 
was instructed, returned, rendered and filed, this plaintiff 
duly filed in said cause and submitted to the court herein his 
written motion for new trial, on account of the alleged errors 
therein specified and assigned; and that said motion for new 
trial came on for hearing in open court on the 9th day of 
June, 1937, at which time this court overruled and denied said 
motion for new trial and entered its order and judgment to 
said effect; to all of which this plaintiff objected and excepted, 
and saved exceptions.

That the afore-mentioned verdict, judgment, and order of 
the court denying motion for new trial have become final. 
That prior to the act of the Congress of the United States, 
of January 31, 1928, (Ch. 14, 45 Stat., 54) as amended by the 
act of April 26, 1928 (Ch. 440, 45 Stat., 466), said verdict 
and said judgment and order of this court would be review- 
able upon Writ of Error, by the United States Circuit Court 
of Appeals, for the proper Circuit.

That said plaintiff, I. W. Lane, feeling himself aggrieved 
by the aforementioned adverse verdict, and act and order of



78 I. W. L ane v. Jess W ilson, et al.

this court directing and instructing same, by the judgment 
of this court and by its order denying plaintiff new trial, as 
well as by the alleged errors commited during the trial of 
this cause, comes now by his attorney, Charles A. Chandler, 
and gives notice that he does appeal from said verdict, judg­
ment, and orders of this court, to the United States Circuit 
Court of Appeals for the Tenth Circuit; and said plaintiff 
respectfully petitions this court for an order allowing said ap­
peal to said Circuit Court of Appeals, by this plaintiff as ap­
pellant, under and according to the laws of the United States 
and the Buies of Court made and provided.

And said plaintiff, in connection with this petition for 
appeal, respectfully submits herewith his assignment of er­
rors, setting forth separately and particularly each error as­
serted and intended to be urged upon said appeal; and said 
plaintiff further submits herewith his Cost Bond on Appeal 
conditioned according to law.

Wherefore, This Petitioner Bespectfully Prays that this 
Honorable court allow his appeal to said United States Cir­
cuit Court of Appeals for the Tenth Circuit, and make order 
to said effect, fixing the amount of security for costs which 
the plaintiff shall give upon said appeal; and that the court 
approve the Appeal Bond herewith submitted; further, that 
this court sign and issue citation upon and to the defendants 
herein, to wit: Jess Wilson, John Moss, and Marion Parks.

And said plaintiff further prays that this court by its 
order allowing an appeal herein, to extend the time for thirty 
days from this date within which to prepare, settle and file 
Bill of Exceptions; and that this court reserve jurisdiction of 
this cause for the purpose of settling and filing herein said 
bill of exceptions.

Dated this 9th day of June A. D. 1937.
I. W. LANE,

Petitioner—Plaintiff.
By CHARLES A. CHANDLER,

C. E. ROBERTSON,
Attorneys for Petitioner.

Filed in open court Jun. 9, 1937. W. V. McClure, Clerk.



79

(Caption omitted.)
Assignment of Errors and Prayer for Reversal.

Now comes the above-named plaintiff, I. W. Lane, and 
files and makes the following- assignment of errors upon which 
he will rely in the prosecution of appeal in the above-entitled 
and numbered cause, from the verdict rendered therein on 
the 20th day of April, A. D. 1937; from the judgment rendered 
therein on the 9th day of June A. D. 1937, and from the order 
therein rendered on the 9th day of June, A. D. 1937, denying 
and refusing plaintiff a new trial, to w it:

I .
During the trial of said cause the Honorable trial Judge 

committed errors of law, prejudicial to the rights of s a i d  
plaintiff, to which plaintiff did then and there except.

I I .
During the trial of said cause it was established and not 

controverted, that in Wagoner County, Oklahoma, where of 
a total population of 22,428 inhabitants 6753 were Negroes 
(D. S. Official Census, 1930), during the 20 years next pre- 
ceeding trial of this cause the officials of the State of Okla­
homa, administering the 1916 Registration Laws of the State 
(0. S. 1931, Sec. 5654), permitted only TWO Negro citizens 
of the United States to register and qualify as electors, al­
though many Negro citizens of the United States, including 
plaintiff, Lane, residing in said county were duly qualified 
otherwise. This clearly established an abridgment and denial 
of the right to vote, on account of race and color; and also a 
violation of the 15th Article of Amendment to the Constitu­
tion of the United States; and the trial court erred in hold­
ing and instructing the jury in said cause that said Registra­
tion Laws were valid and not unconstitutional, to all of which 
plaintiff duly objected and excepted.

I I I .
It appearing from the face of the Oklahoma Registration 

Laws of 1916 (0. S., 1931, Sec. 5654) that said law is an at­
tempted revitalization of the illegal Grandfather Clause, Art. 
HI, Sec. 4a, Oklahoma Constitution, Sec. 13450, O. S. 1931; 
or the same invalid law in a new disguise of words, and hav­
ing the same discriminatory and unconstitutional intent, op­

I. W. L ane v. Jess W ilson, et al.



eration, and effect, b e i n g  violative of the 15th Article of 
Amendment to the Constitution of the United States, the 
Honorable trial court erred in holding and adjudging, and in 
instructing the jury in said cause that said laws were and are 
valid and not unconstitutional, to which plaintiff duly object­
ed and excepted.

IV .
The said Registration Laws of the State of Oklahoma 

(O. S. 1931, Sec. 5654), as made and enforced by the State, 
abridge the privileges and immunities of plaintiff Lane and 
of other citizens of the United States of his color and sim­
ilarly situated, deprives them of liberty and property with­
out due process of law, and denies them the equal protection 
of the laws; said Registration Laws are violative of the 14th 
Article of Amendment to the Constitution of the Uni ted  
States. The trial court erred in holding, adjudging, and in 
instructing the jury upon the trial of said cause that said 
laws were valid and not violative of the said 14th Amend­
ment.

V .
It appearing that there was abundant evidence to estab­

lish that the plaintiff Lane was duly qualified to be registered 
and to vote as an elector in said State and Wagoner County 
at the times in question; and that the defendants had, acting 
jointly and sererally, wrongfully prevented his registering or 
voting, the cause should have been submitted to the jury un­
der proper instructions from the court; and in refusing so 
to submit said cause to the jury with proper instructions, the 
trial court committed an error prejudicial to the rights of 
plaintiff, to all of which plaintiff objected and excepted and 
saved exceptions.

V I .
It being established by the evidence that the plaintiff 

Lane was duly qualified as an elector of Wagoner County, 
Oklahoma; and that he made due and proper application to 
the defendant, Marion Parks, precinct Registrar, for regis­
tration at a time when said Lane was entitled to be regis­
tered as an elector; and that the defendant Parks refused and 
prevented said Lane’s registration, for the sole reason that 
he was a Negro, said Parks acting under the color of a state 
custom, practice, and statute, plaintiff Lane was legally en­

SO I. W. L ane v. Jess W ilson, et al.



I. w. L ane v. Jess W ilson, et al. 81

titled to have his cause submitted to the jury, and the trial 
court erred in instructing the jury to render and return a 
verdict for the defendants and against said plaintiff; to all 
of which plaintiff objected and excepted.

V I I .
There being adduced upon trial abundant evidence to es­

tablish that the defendants, Jess Wilson, John Moss, and Mar­
ion Parks, in denying to plaintiff Lane the right to register as 
an elector of Wagoner County, Oklahoma, and in consequent­
ly denying him the right to vote as an elector of said county 
and as a citizen of the United States, were acting conjointly 
and pursuant to an agreement and understanding to accom­
plish a result violative of the laws of the United States, the 
trial court erred in refusing to instruct the jury on the ques­
tion and issue of conspiracy, as requested by the plaintiff; 
and in this the court erred, to which the plaintiff objected and 
excepted.

V I I I .
The trial court erred In refusing to give to the jury the 

several instructions requested by the plaintiff; and to this 
the plaintiff objected and saved exceptions.

I X .
There being adduced upon trial abundant evidence to es­

tablish in favor of plaintiff every material issue in the case, 
the trial court erred as a matter of law in taking the case from 
the jury and in instructing a verdict in favor of the defend­
ants and against the plaintiff; to which the plaintiff objected 
and excepted.

X .
The trial court commPed an error of law in refusing to 

instruct the jury, as requested by the plaintiff, that Section 
5654, 0. S. 1931, in so far as it purported to deny to plaintiff 
Lane the right to register, was unconstitutional, null and void; 
and to this the plaintiff objected and saved exceptions.

X I .
The trial court erred in sustaining the motion of the de­

fendants for an instructed verdict in their favor, when the 
evidence established in favor of plaintiff every material is­
sue in the cause; and to this plaintiff objected and saved ex­
ceptions.



82 I. W. L ane v. Jess W ilson, et al.

X I I .
The verdict of the jury is not supported by any evidence 

adduced upon trial of the cause.
X I I I .

The judgment of the court is not sustained by any evi­
dence.

X I V .
The trial court erred in overruling and denying the mo­

tion of plaintiff for new trial, to which plaintiff objected and 
saved exceptions.

Wherefore, said plaintiff, I. W. Lane, respectfully prays 
that said verdict, judgment and orders of the trial court be 
reversed and that a new trial be ordered according to law; 
and plaintiff prays for such other, further, or additional re­
lief as to the court may appear just and proper.

Dated this 9tli day of June A. D. 1937.
I. W. LANE,

Plaintiff—Appellant.
By CHARLES A. CHANDLER,

C. E. ROBERTSON,
Attorneys for Plaintiff.

Filed in open court, Jun. 9, 1937. W. Y. McClure, Clerk.

(Caption omitted.)
Cost Bond Upon Appeal.

Know all Men by These Presents:
That we, I. W. Lane as principal, and the United States 

Fidelity and Guaranty Company, a Corporation of Maryland, 
as surety, are held and firmly bound unto Jess Wilson, John 
Moss, and Marion Parks in the full and just sum of Five 
Hundred Dollars ($500.00), to be paid to the said Jess Wil­
son, John Moss, and Marion Parks, and to their heirs, execu­
tors, administrators, successors, or assigns, to which payment 
well and truly to be made, we bind ourselves, our heirs, execu­
tors, and administrators, successors, or assigns, jointly and 
severally by these presents. Sealed with our seals and dated 
this 8th day of June, A. D. 1937.



Whereas, lately at t h e ..............term, A. D. 1937, of the
District Court of the United States for the Eastern District 
of Oklahoma in a suit depending in said court between said 
I. W. Lane, plaintiff, and the aforesaid Jess Wilson, John 
Moss, and Marion Parks, defendants, judgment was rendered 
against said plaintiff, I. W. Lane; and the said I. W. Lane 
has petitioned said court for an appeal to reverse the said 
judgment in the aforesaid suit, and a citation directed to the 
said Jess Wilson, John Moss, and Marion Parks citing and 
admonishing them to be and appear in the United States Cir­
cuit Court of Appeals for the Tenth Circuit, at the City of 
Denver, Colorado, forty (40) days from and after the date 
of said citation.

Now, the condition of the above obligation is such that 
if the said I. W. Lane shall prosecute said appeal to effect, 
and answer all damages and costs if he fail to make good his 
plea, then the above obligation to be void, else to remain in 
full force and virtue.

Sealed and delivered in the presence o f :
I. W. LANE, (Seal)

Principal,
THE UNITED STATES FI­

DELITY AND GUARAN­
TY COMPANY, A COR­
PORATION,

By ORBAN WINDHAM, (Seal)
Its Attorney in Fact, Surety.

The above and foregoing bond is hereby approved in 
open court this 9th day of June, 1937.

ALFRED P. MURRAH,
U. S. District Judge.

Filed in open court, Jun. 9, 1937. W. V. McClure, Clerk.

I. W. L ane v. Jess W ilson, et al. S3

(Caption omitted.)
Order Allowing Appeal.

On motion of Charles A. Chandler, counsel for the plain­
tiff, I. W. Lane, and upon consideration of this court of the



84 I. W. L ane v. Jess W ilson, e t .ajl,

petition for appeal duly filed by said plaintiff in open court 
on this 9th day of June, A. D. 1937, at the same time of ren­
dition of final judgment and of order denying Ms motion for 
new trial herein, in favor of said defendants and against said 
plaintiff, said plaintiff noting an exception to said judgment 
and order, and exceptions being allowed him; said petition 
of plaintiff for appeal is granted and allowed, and it is here­
by in open court ordered, adjudged and decreed that an ap­
peal be allowed and granted, to the United States Circuit 
Court of Appeals for the Tenth Circuit, from the final judg­
ment, verdict, and from the order of this court denying plain­
tiff’s motion for new trial; and it is further ordered, adjudg­
ed, and decreed that a certified transcript of the record, tes­
timony, exhibits, stipulations, bill of exceptions, and of all 
proceedings in said cause in this court be forthwith transmit­
ted to said United States Circuit Court of Appeals for the 
Tenth Circuit.

It is further ordered that the Assignment of Errors sub­
mitted with said petition for appeal be filed in this court and 
made a part of the proceedings herein; and that cost bond 
upon appeal be fixed in the sum of Five Hundred Dollars 
($500.00), and the bond submitted by said plaintiff in said 
sum is hereby approved.

Done in open court this 9th day of June, A. D. 1937.
ALFRED P. MURRAH,

U. S. District Judge.
Filed in open court, Jun. 9, 1937. W. V. McClure, Clerk.

(Caption omitted.)
Citation.

United States of America,
To Jess Wilson, John Moss, and Marion Parks, Defend­

ants, Greetings:
You, and each of you, are hereby cited and admonished 

to be and appear in the United States Circuit Court of Ap­
peals for the Tenth Circuit, at the City of Denver, Colorado, 
forty (40) days from and after the day this citation bears 
date, pursuant to appeal from the District Court of the Unit­
ed States for the Eastern District of Oklahoma, wherein I



W. Lane is appellant, and you are appellees, to show cause, 
if any there he why the verdict rendered and filed in the above 
entitled cause on April 20th, 1937, A. D., the judgment ren­
dered in said cause in your favor in said cause on the 9th 
day of June, A. D. 1937, and why the order of said District 
Court of the United States for the Eastern District of Ok­
lahoma denying to said appellant a new trial in said court, 
said verdict, judgment, and order being in your favor and 
against the said appellant, from which said appeal was al­
lowed, should not be corrected, and why speedy justice should 
not he done the parties in that behalf.

Witness, the Honorable Alfred P. Murrah, judge of the 
United States District Court for the Eastern District of Ok­
lahoma, this 9th day of June, A. D. 1937.

ALFRED P. MURRAH,
U. S. District Judge.

I. W. L ane v. Jess W ilson, et al. 85

Acknowledgment of Service of Citation.
The undersigned hereby acknowledges service upon him 

of the above and foregoing Citation, said service being made 
in open court, as attorney for each of the defendants and ap­
pellees, to wit: Jess Wilson, John Moss, and Marion Parks; 
said service of citation being made on this 9th day of June, 
A.D. 1937.

CHAS. G. WATTS, 
JOSEPH C. STONE, 

Attorney of Record for the Defend­
ants, Jess Wilson, John Moss, and 
Marion Parks.

(Caption omitted.)
Order Extending Time Within Which to Prepare, Settle and 

File Bill of Exceptions for Record Upon Appeal.
The application of the plaintiff herein below, appellant 

upon appeal, by Charles A. Chandler, as attorney, for an ex­
tension of forty-five (45) days time from this date for com­
pleting, settling and filing Bill of Exceptions upon appeal 
herein, being considered by the Court;

And it appearing to the Court that due diligence herein



86 I. W. L ane v. Jess W ilson, et al.

lias been exercised by said plaintiff and by his attorney, and 
that there should be herein an extension of forty-five (45) 
days time from this date within which said plaintiff and ap­
pellant shall be allowed and permitted to to complete Bill of 
Exceptions for record upon appeal herein to the United States 
Circuit Court of Appeals for the Tenth Circuit;

Therefore, It is hereby ordered, adjudged, and decreed 
that the said plaintiff and appellant have an extension of 
forty-five (45) days from this date within which he shall be 
permitted to complete, settle, and file in the above entitled 
and numbered cause upon appeal, the Bill of Exceptions to 
be incorporated in the transcript of record for the appeal of 
said cause to the said United States Circuit Court of Appeals 
for the Tenth Circuit.

Dated this 28th day of June, 1937.
ALFRED P. MURRAH, 
United States District Judge.

Filed Jun. 28, 1937. W. V. McClure, Clerk.

(Caption omitted.)
Stipulation for Extension of Time Within Which to Prepare, 
Serve, and Settle Bill of Exceptions, to Docket Appeal, and 

to File Record and Transcript in C. C. A.
It is hereby agreed and stipulated by and between the 

parties hereto that the plaintiff in error, I. W. Lane, shall 
have an extension of thirty days time from and after the time 
heretofore allowed within which to prepare, serve, settle, and 
file Bill of Exceptions in the above entitled cause; and that 
said plaintiff may have an extension of time for thirty days 
from and after the time heretofore allowed within which to 
docket the above entitled and numbered cause upon appeal 
to said Circuit Court of Appeals and to file with the Clerk 
of said Circuit Court of Appeals of the Tenth Circuit, record 
and transcript upon appeal in said cause.

And said parties do further agree and stipulate that 
orders extending time as hereinabove mentioned may be made 
and signed by any United States District Judge.

Dated this 11th day of August, 1937.
I. W. LANE,

Appellant.



I. W. L ane v. Jess W ilson, et al. 87

By CHARLES A. CHANDLER,
Counsel for Appellant.

CHAS. Gf. WATTS,
Counsel for Appellees.

Filed Aug. 11, 1937. W. V. McClure, Clerk.

(Caption omitted.)
Order for Extension of Time to Prepare, Settle, and File 
Bill of Exceptions; To Docket Appeal, and to File Record 

and Transcript on Appeal.
On this 11th day of August, 1937, there being presented 

to the court the stipulation of the parties herein, consenting 
for an extension of thirty (30) days from and after the re­
spective periods therefor heretofore allowed for appellant, 
I. W. Lane, to prepare, serve, settle, and file Bill of Excep­
tions herein, and to lodge and docket appeal herein in the 
United States Circuit Court of Appeals for the Tenth Cir­
cuit, and to file therein transcript and record upon appeal; 
the court finds that order should be made accordingly.

Wherefore, it is hereby ordered that said plaintiff, I. 
W. Lane be allowed and granted a further extension of thirty 
(30) days from and after the time heretofore allowed, within 
which, respectively, to prepare, settle, and file Bill of Ex­
ceptions upon appeal herein; and to lodge and docket said 
appeal in the United States Circuit Court of Appeals for the 
Tenth Circuit, and to file therein transcript and record upon 
appeal.

Dated this 1 1 th day of August, 1937.
ALFRED P. MURRAH,

U. S. District Judge.
Filed Aug. 1 1 , 1937. W. V. McClure, Clerk.

(Caption omitted.)
Order Extending Time to Docket Appeal.

On this 10th day of September, 1937, it appearing to the 
court that same is reasonably necessary, and that the appel­
lant has exercised due dilience in the premises, and that it 
will be impossible within the time heretofore allowed, to dock­



ss I. W. L ane v. Jess W ilson, et aju

et appeal herein in the United States Circuit Court of Ap­
peals for the Tenth Circuit, or to have record therein printed 
and filed in said appellate Court;

Wherefore, It is hereby ordered, adjudged, and decreed 
that the time within which appellant herein shall be permitted 
to docket appeal herein in the said United States Circuit 
Court of Appeals, and to file and lodge record upon appeal 
in said court, shall be extended for Forty-five days (45 d.) 
from and after the time heretofore allowed.

Done in open court this 10th day of September, 1937.
ALFRED P. MURBAH,

U. S. Dist. Judge.

The parties hereto do hereby agree and stipulate for 
the entering of the afore order.

CHARLES A. CHANDLER,
Attorney for Appellant.

JOSEPH C. STONE,
Attorney for Appellees.

Filed Sep. 20, 1937. W. V. McClure, Clerk.

(Caption omitted.)
Order Extending Time to Docket Appeal.

Now on this 22nd day of October, 1937, it appearing to 
the Court that the time heretofore allowed for docketing the 
appeal in the above entitled cause in the United States Cir­
cuit Court of Appeals for the Tenth Circuit, and for lodging 
printed transcript of record therein, is insufficient,

It Is Hereby Ordered that the time within which said 
plaintiff shall be permitted to docket said appeal and to file 
transcript of record therein in the United States Circuit Court 
of Appeals for the Tenth Circuit shall be, and the same is 
hereby extended to and until the 10th day of November, 1937.

ALFRED P. MURRAH,
U. S. District Judge.

Filed Oct. 22, 1937. W. V. McClure, Clerk.



89

(Caption omitted.)
Praecipe.

To the Clerk of the Afore-named Court:
You are hereby respectfully requested to make a Tran­

script of the Record to be filed in the United States Circuit 
Court of Appeals for the Tenth Circuit, pursuant to an ap­
peal allowed in the above-entitled cause; and to include in 
such transcript of the record, the following papers and doc­
uments of record in your office, to wit:
1. Petition of Plaintiff, I. W. Lane.
2. Answer of Jess Wilson and Marion Parks.
3. Answer of John Moss.
4. Reply of Plaintiff to Answer of John Moss.
5. Reply of Plaintiff to answer of Jess Wilson and Marion 

Parks.
6 . Verdict.
7. Order of the Court, dated April 20, 1937, instructing ver­

dict for defendants. (Page 50 in Bill of Exceptions.)
8 . Motion of Plaintiff, Lane, for new trial.
9. Journal Entry of Judgment, dated June 9, 1937.

10. Petition for Appeal.
11. Assignment of Errors.
12. Cost Bond on Appeal.
13. Order allowing appeal.
14. Citation, with proof of service thereof.
15. Order of June 28, 1937, Extending Time Forty-five Days 

to Docket Appeal.
16. Stipulation of August 11, 1937, for Extension of time to 

Settle Bill of Exceptions, and to Docket Appeal.
17. Order of August 11, 1937, for Extension of Time.
18. Bill of Exceptions filed in your office on Second (2nd) day 

of September, 1937, together With Stipulation and Or­
der settling same, filed in your office on Eighth day of 
September, 1937, and attached to said Bill of Exceptions.

19. Order dated the 10  day of September, 1937, for exten­
sion of time for docketing appeal.

I. W. L ane v. Jess W ilson, et al.



19A. Order extending time to docket appeal, dated October 
22, 1937.

20. This Praecipe.
21. Certificate of the Court.

Said transcript to be prepared as required by the law, 
by the rules of this court, and by the rules of the United States 
Circuit Court of Appeals for the Tenth Circuit.

Dated th is ___ day of September, 1937.
CHARLES A. CHANDLER,
C. E. ROBERTSON

Attorneys for Appellant.

90 I. W. L ane v. Jess W ilson, et al.

Service and Stipulation,
Service of the above praecipe is hereby accepted and ac­

knowledged, and it is hereby agreed and stipulated that the 
matters set forth in the foregoing praecipe shall be the mat­
ters and things to be included therein, and to he included in 
the transcript of record.

Dated t h is -----day of September, 1937.
CHAS. G. W ATTS,
GORDON WATTS,
JOSEPH C. STONE,

Attorneys for Appellees.
Filed Sep. 10, 1937. W. V. McClure, Clerk.



Certificate of Clerk.
United States of America,
Eastern District of Oklahoma—ss.

I, W. V. McClure, Clerk of the United States District- 
Court for the Eastern District of Oklahoma, do hereby certify 
that the above and foregoing is a full, true and correct tran­
script of so much of the record in the case of I. W. Lane, 
Plaintiff, vs. Jess Wilson, Marion Parks, and John Moss, De­
fendants, No. 6353-Law, as was ordered by praecipe of coun­
sel herein to be prepared and authenticated, as the same ap­
pears from the records in my office.

I further certify that the citation attached hereto, and 
returned herewith, is the original citation issued in said cause.

In testimony whereof, I  have hereunto set my hand and 
affixed the seal of said court at my office in the City of Mus­
kogee, this 4th day of November, A.D . 1937.

(Seal) W. V. McCLUEE, Clerk.

I. W. L ane v. Jess W ilson, et al. 91





fiXc

l- if  -  ■*?)

3n t \>tSupreme Court
of tfye ICitited States

No. 460, October Term, 1938
iiiiiiiiiiiiiiiiiiiiiiiiiimuiiniiiiiiiiiiiiiMiiiiMiiiiiiiiuiiuiiiiiitiiiiiiiiiiiiiiHiiiiniiiiiiiiiiiiiiiiiiiiiiiiiiiiiiuiiiiiiiiiiiiiiiiuliiiiimiiiiimiiiiiiiiiiiiiiiiiilHiiiiiiiiiiiii

I. W . LANE, Petitioner,

V E R S U S

JESS WILSON, JOHN MOSS AND MARION PARKS, 
Respondents.

BRIEF OF PE TITIO N E R
(ON W R I T  O F C E R T IO R A R I  T O  T H E  U N I T E D  S T A T E S  C I R C U I T  

C O U R T  O F  A P P E A L S  F O R  T H E  T E N T H  C IR C U IT . )

CHARLES A. CHANDLER, Esquire,
Muskogee, Oklahoma, 

Counsel for Petitioner.





I N D E X .

Subject I ndex.

Opinions of the courts below.........................................  2
Statement as to jurisdiction.........................................  2
Statement of the case...................................................... 7

I. Preliminary statement..........................................  7
II. Abstract of record................................................ 11

Specification of errors...................................................  28
Argument.........................................................................  30

I . Opinion of Circuit Court of Appeals so far de­
parted from the accepted and usual course of 
judicial proceedings, as to warrant reversal.. 30

II. The Oklahoma Registration Law is violative 
of 15th Amendment..............................................  35

Point 1. Sec. 5654, O. S. 1931, is violative 
of 15th Amendment..............................................  35

Point 2. This case is not within the doc­
trine of the case of Giles v. Harris.....................  45

Point 3. Provision of a judicial remedy 
in the State court does not impair the jurisdic­
tion of the Federal Court...................................  47

Point 4. Sec. 5654, O. S. 1931, is violative 
of the 15th Amendment, because its actual ad­
ministration achieves a result interdicted by 
said Amendment................................................... 52

P A G E



INDEX— C ontinued.
PAGE

III. The Oklahoma Registration Statute is viola­
tive of the 14th Amendment...............................

IV. The Oklahoma Registration Law is violative of
Section 1, Article III of the Conclusion of 
Oklahoma...............................................................

V. The decision of the Circuit Court of Appeals 
is Violative of the 7th Amendment...................

Conclusion..............................................................................

Table oe Cases.
Anderson, et al. v. Myers, et al., 182 Fed. 223.........  44
Atty. Gen. v. City of Detroit, 78 Mich. 545...............  64
Atwater v. Hassell, 27 Okl. 292..................9, 33, 34, 55
Bliley v. West, 42 Fed. (2d) 101......................... 44,51
Buchanan v. Warley, 245 U. S. 60. ........................... 58
Chicot County, Ark. v. Sherwood, 148 U. S. 529... 52
Co field v. Farrell, 38 Okl. 608.....................................54
Davis v. Wallace, 257 U. S. 478............................. 52, 59
Ex parte Va., 100 U. S. 339....................................... 58
First National Bank v. Geldhart, 64 Fed. (2d) 873. 50
Giles v. Harris, 189 U. S. 475......................... 45,47,49
Grainger v. Douglas Park, etc., 148 Fed 513........... 53
Guinn v. U. S., 238 U. S. 347......................................

. .5, 9, 10, 28, 30, 31, 32, 34, 35, 36, 40, 43, 44, 45,59
Guinn v. U. S., 228 Fed. 103........................................ ®
Hamilton Brown Shoe Co. v. Wolfe, etc., 240 U. S.

.................................................................................51
Henderson v. Mayor of N. Y., 92 U. S. 259.............
In re: Tiburcio Parrott, 1 Fed. 481....................... 44,58
In re: Wo Lee, 26 Fed. 471........................................ 58
In re: Yarbrough, 110 IT. S. 651........................... . • •
Kineen v. Wells, 144 Mass. 497................................ ^
Lane v. Wilson, 98 Fed. (2d) 980..............................  '



INDEX— C ontinued.
p a g e

McCafferty v. Guyer, et al., 59 Pa. St. 109............ 64
Minnesota v. Barber, 136 U. S. 313....................... 53, 58
Monroe, et al. v. Collins, 17 Ohio St. 665................64, 65
Mugler y. Kansas, 123 U. S. 623.................................  53
Munger v. Town of Watonga, 106 Okl. 78................ 56
Myers v. Anderson, et al., 238 U. S. 368...................

............................... ......... 4, 35, 44, 45, 47, 48, 50, 55
National Bank v. Board, 264 U. S. 450.....................  50
Neal v. Delaware, 103 U. S. 370............................. 44, 58
Nixon v. Herndon, 273 IT. S. 536..................44, 54, 58
Pope v. Williams, 193 U. S. 621.................................  33
Sioux City Bridge Co. v. Dakota County, Neb., 2601

tr. S. 441................................... ............................. 53
Slaughter House Cases, 83 TJ. S., 16 Wall. 36.. .44, 58
Slocum v. N. T. Life Ins. Co., 228 II. S. 364.............. 70
State of Missouri, ex rel. Gaines v. Canada, etc., et

al. (Dec. 12, 1938, No. 57), . . .  U. S.................. 69
Strauder v. W. Va., 100 V. S. 303...............................  58
Terrace v. Thompson, 263 IT. S. 197.........................  55
Traux v. Corrigan, 257 U. S. 312...............................  53
Traux v. Raich, 239 IT. S. 33....................................... 53
Trudeau v. Barnes, 65 Fed. (2d) 563..............47, 50, 51
U. S. v. Reese, 92 IT. S. 214......................................... 44

West v. Bliley, 33 Fed. (2d) 177..................... 44, 51, 52
Wiley v. Sinkler, 179 IT. S. 58...............................50
Tick Wo v. Hopkins, 118 IT. S. 256..................53, 58, 65

CONSTITUTIONAE PROVISIONS.
YI Article of U. S. Constitution............................. 2, 70

(Appendix, p. 71)
7th Amendment to the Constitution of IT. S.. .29, 66, 70 

(Appendix, p. 71)
14th Amendment to the Constitution of U. S...........

;• ............................................ 5, 25, 29, 36, 42. 54, 70
(Appendix, p. 71)



INDEX— C o n t i n u e d .
PAGE

15th Amendment to the Constitution of U. S . . ........
. . .  .5, 25, 28, 31, 32, 35,10,12,13,15,18,19, 52, 
(Appendix, p. 72)

Section 1, Art. I l l  Okla. Constitution.....................
..................................... 10, 25, 29, 38, 44, 59, 60,

70

66
(Appendix, p. 76)

Section la, Art. I l l , Okla. Constitution (Grand­
father Clause). .5, 8, 9, 10, 11, 30, 36, 44,18, 49, 61 
(Appendix, p. 77)

Section 6, Art. I l l ,  Okla. Constitution.......... 10,12,56
Article 1, Section 6, Okla. Constitution...................  8

F ederal Statutes.
R. S. Section 1979, Title 8, U. S. Code, Sec. 4 3 .... 

.........................................................12, 17, 18, 49, 51
(Appendix, p. 72)

R. S. Section 2004, Title 8, IT. S. Code, See. 31.......
...................................................5, 12, 35, 45, 49,52
(Appendix, p. 72)

Title 28, U. S. Code, Sec. 11, Subd. 14, 36 Stat.
1092......................................................................... 3
(Appendix, p. 72)

Act of Feb. 13, 1925, Chap. 229, 43 Stat. 938......... 4,26
Section 240 (a), Judicial Code Amended, 43 Stat.

938..........................................................................  4
Sec. 52, Judicial Code (28 U. S. C., Sec. 113)............  4
Sec. 128, Judicial Code (28 TJ. S. C., Sec. 225).. .4,26

State Statutes.
O. S. 1931, Sec. 5613, Yol. I, p. 1641......................  5
O. S. 1931, Sec. 5652, Vol. I, p. 1646............... 34, 37,56

(Appendix, p. 73)



pa g e

0. S. 1931, Sec. 5654, Vol. I, p, 1646........................
............................. 5, 7, 12, 13, 14, 25, 28, 30, 34,
35, 37, 38, 39, 42, 43, 44, 51, 52, 54, 56, 59, 60, 61 
(Appendix, p. 74)

0. S. 1931, Sec. 5657, Vol. I, p. 1648.....................   37
0. S. 1931, Sec. 5661, Vol. I, p. 1651.........................  56

(Appendix, p. 75)
0. S. 1931, Sec. 5842, Vol. I, p. 1714...........................  55
0. S. 1931, Sec. 5844, Vol. I, p. 1714...........................  55
Ann. Code of Maryland, Art. I ll , Sec. 27................ 50

Text B ooks.
Cooley’s Constitutional Limitations, 8th Ed. 1927, 

Vol. 2, at p. 1370................................................. 65
9 Ruling Case Law, p. 1036, Secs. 52, 53, 54............ 61
Univ. of Penn. L. R. Vol. 87, January, 1939, p. 348. . 35

INDEX— C o n c l u d e d .

Coubt R ules.
Revised Rules of the Supreme Court, Rule 38. . 4, 35, 51





In the Supreme Court of the United States

No. 460
O C T O B E R  T E R M ,  1938.

I. W . LANE, Petitioner, 
vs.

JESS WILSON, JOHN MOSS AND MARION PARKS, 
Respondents.

(ON W R I T  O F C E R T IO R A R I  T O  T H E  U N I T E D  S T A T E S  C IR C U I T  

C O U R T  O F  A P P E A L S  FO R  T H E  T E N T H  C IR C U IT . )

BRIEF OF PETITIONER ON WRIT OF CERTIORARI.

May It Please the Court :
The petitioner, I. W. Lane, respectfully shows to this 

Honorable Court that this matter comes on for hearing 
herein upon Writ of Certiorari, allowed by this court on 
the 12th day of December, 1938 (R., p. 103), to review a 
judgment and order of the United States Circuit Court of 
Appeals for the Tenth Circuit, rendered on the 19th day 
of September, 1938, affirming a judgment of the United 
States District Court for the Eastern District of Oklahoma, 
rendered and entered by said latter court on the 19th day 
of April, 1937, in favor of said respondents herein and 
against the petitioner (R., p. 24). And said petitioner re­
spectfully submits the following brief in the premises:



2 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

A .
O P I N I O N S  o f  the C O U R T S  B E L O W .

Said opinion, judgment, and order of the Circuit Court 
of Appeals here sought to be reviewed are set forth in the 
record, pages 93-101; and said opinion is reported in vol­
ume 98, Federal Reporter (2d) at page 980.

The judgment of said Federal District Court which 
was affirmed by said opinion and judgment of the said Cir­
cuit Court of Appeals is set forth in the record at pages 
24-26; and opinion of the trial court is found in the rec­
ord, pages 59-61. Said opinion of the trial court was not 
officially reported.

B .
S T A T E M E N T  as to J U R I S D I C T I O N .

( 1 )  This Cause Was Within the Original Jurisdiction of
the Federal District Court.

It is provided by the second paragraph of Article VI, 
of U. S. Constitution, that said Constitution, and the laws 
of the United States which shall be made in pursuance 

thereof shall be the supreme law of the land (Appendix 
hereto, page 71).

The 14th Amendment to the Federal Constitution pro­
vides that no State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of 
the United States, nor * * * deny to any person within its 
jurisdiction the equal protection of the laws (Appendix, 

p. 71). The 15th Amendment provides that the right of 
citizens of the United States to vote shall not be denied 

or abridged by the United States or by any State on ac­
count of race, color, or previous condition of servitude (Ap­
pendix, p. 72).



B r i e f  o f  P e t i t i o n e r . 3

Pursuant to said constitutional provisions, the Con­
gress duly enacted R. S. Secs. 2004 and 1979 (U. S. C. 
Title 8, Secs. 31 and 43, which are set forth in the Ap­
pendix, p. 72). Said R. S. Sec. 2004 provides, in effect, that 
all citizens of the United States who are otherwise quali­
fied by law to vote, shall be entitled and allowed to vote 
at all elections, without distinction of race, color, or pre­
vious condition of servitude; and said R. S. Sec. 1979 af­
fords a remedy, by action at law, suit in equity, or other 
proper proceeding for redress, for deprivation, under color 
of the laws of any State, of rights, privileges, or immun­
ities secured by said Federal Constitution and laws.

By Section 24 of the Judicial Code (U. S. C. Title 28, 
Sec. 41) it is provided: (1) that the District Courts shall 
have original jurisdiction of all suits of a civil nature, at 
common law or in equity * * * where the matter in con­
troversy exceeds, exclusive of interest and costs, the sum 
or value of $3,000.00, and (a) arises under the Constitution 
or laws of the United States; and by paragraph fourteen 
* * * (14), of all suits at law or in equity authorized by 
law to be brought by any person to redress the depriva­
tion under color of any law * * of any State, of any right, 
privilege, or immunity, secured by the Constitution of the 
United States, or of any right secured by any law of the 
United States providing for equal rights of citizens of the 
United States (Appendix, p. 72).

By his petition filed below (R., p. 1-10), the petitioner, 
as plaintiff, sought $5,000.00 actual damages, and $5,000.00 
punitive damages from the respondents, as defendants, on 
account of their having deprived him of his rights to reg­
ister and to vote, it appearing that said respondents were 
acting under color of the Statutes of the State of Oklahoma, 
herein alleged to be unconstitutional.



4 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

Said District Court had original jurisdiction of the 
action. See: Myers, et al. v. Anderson, et al (1915), 238 
IT. S. 368, 59 L. ed. 1349.

It appeared, further, that all of the parties to said ac­
tion, plaintiff and defendant, were citizens and residents 
of the Eastern Judicial District of Oklahoma. Yenue of said 
action properly lay in the District Court of said Federal 
Judicial District. Judicial Code, Sec. 52; U. S. C., Title 28, 
Sec. 113.

( 2 )  Upon Appeal, the Cause Was Within the Jurisdiction 
of the United States Circuit Court of Appeals for the 
Tenth Circuit.

In support of the jurisdiction of the United States 
Circuit Court of Appeals for the Tenth Circuit, of said 
cause upon appeal, this petitioner cites and relies upon 
Judicial Code, Sec. 128, as amended by the Act of Feb. 
13, 1925; 28 U. S. C. A., Sec. 225 (a), First Subdivision.

( 3 )  The Matter Herein Is Within the Jurisdiction of the 
Supreme Court of the United States.

To review the above mentioned final judgment and 
decision of said Circuit Court of Appeals, petitioner on 
November 7th, 1938, in accordance with the rules of this 
Honorable Court, filed herein his Petition for Writ of Cer­
tiorari and Brief in Support Thereof; and said petition 
was by this Court allowed on the 12th day of December, 

1938 (R., p. 103). See: Rules of the Supreme Court of the 
United States, Rule No. 38; Sec. 240 (a) Judicial Code, as 
amended by the Act of Feb. 13, 1925; 43 Stat. 938; b
S. C., Title 28, Sec. 347 (a), Amended by Act of Feb. 13, 
1925.

It was contended by this petitioner, both in the Dis­
trict Court (R., p. 7) and in the Circuit Court of Appeals



B r i e f  o f  P e t i t i o n e r . 5

(R., pp. 79-82), and is so contended in this court, that Ar­
ticle 3 of Chapter 29, of Oklahoma Statutes of 1931 (Yol. 
I, 0. S. 1931, pp. 1645-1654), is unconstitutional, and vio­
lative of the 14th and 15th Articles of Amendment to the 
U. S. Constitution, and violative of the aforementioned R.
S. Sec. 2004 (U. S. C., Title 8, Sec. 31). The pertinent sec­
tions of said Oklahoma Statute are set forth in the Ap­
pendix hereto, pp. 73-76).

The essential section of said laws, Sec. 5654, 0. S. 
1931; Yol. I, 0. S. 1931, p. 1646, provides, in effect, that 
all qualified electors of said State of Oklahoma must be 
registered, according to said law, to be entitled to vote in 
any election held in said state; and said laws also provide, 
in effect, that all electors who voted at the general elec­
tion held in said state in 1914 should have the right to 
vote, irrespective of whether such electors voting in 1914 
should be registered under the 1916 act or not. Said elecr- 
tion of 1914 in the State of Oklahoma was held under the 
amendment to the Constitution of Oklahoma, and the cor­
responding statutes, known as the “ Grandfather Clause”  
(See said “ Grandfather Clause” , Sec. 4a of Art. I ll, of 
Oklahoma Constitution; Vol. II, O. S. 1931, p. 1407, Sec. 
13450; Sec. 5643, O. S. 1931, Vol. I, 0. S. 1931, p. 1641; 
Appendix hereto, p. 77). Said “ Grandfather Clause”  pro­
vided, in effect, that no person should be permitted to vote 
in said state unless such person should be able to read 
and write any section of the Constitution of the State of 
Oklahoma; but said ‘ ‘ Grandfather Clause ’ ’ provided fur­
ther, that no person who was on January 1, 1866, or at 
any time prior thereto entitled to vote under any form of 
government, or who resided at that time in some foreign 
nation, and no lineal descendent of such person, should be 
denied the right to vote because of his inability to so read



and write sections of such Constitution. The said “ Grand­
father Clause”  was by this Supreme Court held to be un­
constitutional: Gnimt v. United States (1915), 238 U. S. 
347, 59 L. ed. 1340.

It is contended herein by petitioner that said registra­
tion law of 1916, requiring registration of petitioner, who 
did not vote in the 1914 election because he was prohibited 
by said “ Grandfather Clause” , while it exempted from 
registration those electors who voted at the 1914 election, 
held under the illegal “ Grandfather”  law, is, in constitu­
tional and legal effect, identical with said “ Grandfather 
Clause” , and likewise, unconstitutional.

Said judgment and opinion of the Circuit Court of 
Appeals, affirming the judgment of the trial court and hold­
ing said registration law to be constitutional, was render­
ed on the 19th day of September, 1938 (R., p. 93); 98 Fed. 
(2d) 980. This petitioner, by petition therefor filed No­
vember 7th, 1938, made timely petition to this Honorable 
Court for Writ of Certiorari, which petition was allowed 
on the 12th day of December, 1938 (R., p. 103).

6 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  P e t i t i o n e r . 7

c.
S T A T E M E N T  o f  the C A S E .

I.

PRELIMINARY STATEMENT.

The appeal to the Circuit Court of Appeals was prose­
cuted by appellant Lane, a Negro citizen of Wagoner Coun­
ty, Oklahoma, from judgment and order of the trial court, 
wherein, after trial, the court instructed the jury to re­
turn a verdict against said Lane as plaintiff and in favor 
of the defendants (R., p. 61). In the trial court petitioner 
Lane, as plaintiff, sought of the defendants (respondents 
herein) Five Thousand Dollars ($5,000.00) actual damages 
and a like sum as punitive damages for and on account of 
alleged deprivation of his right to register as an elector 
and, correlatively, of the right to vote, in violation of the 
Fourteenth and Fifteenth Articles of Amendment to the 
Constitution of the United States and of Federal laws 
enacted pursuant thereto, and under color of certain laws 
and statutes of the State of Oklahoma, alleged to be uncon­
stitutional and void as violative of said Fourteenth and 
Fifteenth Amendments (See petition, R., pp. 1-11).

The trial court rendered a formal opinion (R., pp. 
59-61), expressly holding that the Oklahoma Statute (O. S. 
1931, Sec. 5654, Appendix, p. 73) involved and known as 
the Registration Law of 1916, was not violative of the Fed­
eral Constitution. The correctness of this holding and the 
constitutionality (under the State and Federal Constitu­
tions) of said state statute constitute the fundamental ques­
tion presented by the record herein.

This judicial inquiry is the culmination of more than 
twenty-five years of strife, constitutional enactment, leg­
islation, and litigation involving the right of Negro citi­
zens of the United States to vote in the State of Oklahoma.



I. W. L a n e v. Jess W ilson, et al.

Though in said state, and especially in Wagoner County 
therein, where the instant case arose, the Fifteenth Ar­
ticle of Amendment to the Constitution of the United States 
has been, as is by this case indisputably established, to 
all intents and purposes wholly repudiated, nullified, and 
ignored, the benign provisions and the just intent of said 
amendment, as well as those of the Fourteenth, are too 
well known to require or permit their repetition here. Fur­
ther, by the sixth provision of section 3 of the Enabling 
Act (34 Stat. L. 269), under which it acquired the status 
of a state, the new State of Oklahoma entered into a sacred 
and solemn covenant with the United States never to “ enact 
any law restricting or abridging the right of suffrage on 
account of race, color, or previous condition of servitude.” 
(0 . S. 1931, Vol. II, p. 1564.) Moreover, in words at least, 
the original constitution of the state (adopted in 1907) ex­
pressly adopted said Fifteenth Amendment (Okla. Const, 
Art. I, Sec. 6, Vol. II, O. S. 1931, p. 1386, Sec. 13411). But 
as to its colored citizens the state seems by these provisions, 
to have held the word of promise (of suffrage) to their ear, 
but to have broken it in the hope. Said original constitu­
tion, expressly espousing the tenets of the Fifteenth Amend­
ment, was soon (in 1910) amended by that incongruous and 
cunning device known as the “ Grandfather Clause”  (Okla. 
Const., Art. I ll , Sec. 4a), which provided:

“ 13450 (Vol. II, O. S. 1931, p. 1407). Grandfather j 
Clause.

“ Sec. 4a. No person shall be registered as an 
elector of this State, or be allowed to vote in any elec­
tion held herein, unless he be able to read and write 
any section of the Constitution of the State of Okla­
homa; but no person who was, on January 1st, 1® 
or at any time prior thereto, entitled to vote under an} 
form of government, or who at that time resided m 
some foreign nation, and no lineal descendant of sue)



B r i e f  o f  P e t i t i o n e r . 9

person, shall he denied the right to register and vote 
because of his inability to so read and write sections 
of such Constitution. * * * ’ ’

Said Grandfather Clause seems significant in this in­
quiry as to the constitutionality of the Oklahoma Registra­
tion Law, for it is contended by petitioner that the former 
is the progenitor of the latter, that the latter is conceived 
for the same illegal purpose of circumventing the Four­
teenth and Fifteenth Amendments, and that said Regis­
tration Law has the same nefarious operation and effect,
i. e., the disfranchisement of Negro citizens of the United 
States in violation of said Amendments and of Federal laws 
enacted pursuant thereto (See petition, R., pp. 7-10).

The result of the election (Aug. 2, 1910) purporting to 
adopt said Grandfather Clause was proclaimed by the Gov­
ernor on October 6, 1910 (Vol. II, 0. S. 1931, p. 1407, Sec. 
13450, note); and on October 26tli, twenty days later, in 
a most exhaustive, 30-page opinion, in proceedings in er­
ror in the State Supreme Court, said law was adjudged 
to be constitutional and valid. Atwater v. Hassett. et al., 
27 Okl. 292-321, 111 Pac, 802. Just how the said case arose, 
or how it could reach such speedy disposition does not ap­
pear. When, however, in another case, the question of the 
constitutionality of the now infamous Grandfather Clause 
was certified to the Supreme Court of the United States this 
court refused to be beguiled by weasel words or to be sway­
ed by the sophistical reasoning of Atwater v. Hassett, 
supra; and it declared said corrupt law to be violative of 
the Fifteenth Amendment, unconstitutional, null and void. 
Guinn v. United States (1915), 238 U. S. 347, 59 L. ed. 1340.

The oppressive operation of the Grandfather Clause 
(as such) being terminated by the opinion in the aforemen­
tioned Guinn case, forthwith the Legislature of the State



10 I. W. L ane v. Jess W ilson, et al.

was convoked into special session, and it enacted tlie Reg­
istration Law of 1916, under which the Negroes of Wag­
oner County, Oklahoma, in the position of petitioner Lane, 
have been wholly, completely, absolutely, and forever dis­
franchised.

The original Constitution of Oklahoma, sections 1 
and 6, respectively, of Art. I l l  (Yol. II, 0. S. 1931, pp. 1406, 
1408, Secs. 13446, 13452), prescribed the qualifications of 
electors, and authorized the Legislature, when necessary, 
to provide by law for the registration of electors. Immedi­
ately after said Guinn decision, outlawing disfranchisement 
in the State by ruse of the “ Q-randfather Clause” , the Leg­
islature in special session enacted the 1916 Statute, which 
was, ostensibly, for registration of electors; but was, in 
intent, operation and effect, as charged by Lane, the per­
petuation of the Grandfather Clause in a new disguise of 
words (R., p. 23). Just how effectively the new Registra­
tion Law, together with its corrupt administration, has 
accomplished the nefarious design of the Grandfather 
Clause is glaringly demonstrated by the record in the in­
stant case:

According to the last federal census, that of 1930, of 
Wagoner County’s total population of 22,428, Negroes con­
stituted 6,753, or slightly more than 30% (R., p. 38). As 
shown by the official registration records, there were reg­
istered in the County, during TWENTY YEARS next pre­
ceding trial of the instant case, exactly TWO Negro elec­
tors ; and during the entire period since said Registration 
Law became effective, thirteen (13) Negro electors were 
registered in Wagoner County (R., p. 36), but it was not 
shown that a single one of these 13 ever in fact was per­
mitted to vote. In fairness to said Registration Law, as 
well as to the respondents administering same, it should 
be admitted that during the registration of 1934, precinct



B r i e f  o f  P e t i t i o n e r . 11

registrars registered fifty (50) Negroes; however, in an 
inquisition (partial transcript of hearing therein, R., pp. 
64-74) under said laws, instigated by respondent County 
Judge John Moss and conducted by respondent Jess Wil­
son, County Registrar, the registration of each of said fifty 
Negroes was cancelled (R., pp. 36, 64-74).

I I .
ABSTRACT OF RECORD.

( a )  Pleadings.

(1) Petition o f Plaintiff (R., pp. 1-11).

The petition of plaintiff Lane (petitioner) was filed in 
the United States District Court for the Eastern District of 
Oklahoma on October 27, 1934. It was therein alleged that 
said plaintiff was a Negro citizen of the United States and 
a duly qualified elector of Gatesville Precinct No. 1, of 
Wagoner County, Oklahoma; that the defendants Marion 
Parks, Jess Wilson and John Moss were, respectively, the 
Precinct Registrar, County Registrar, and County Judge 
for said county, all residing therein; and that the action 
involved a Federal question, namely, the right of suffrage 
of plaintiff under the Constitution of the United States, 
the Fourteenth and Fifteenth Amendments, and the laws 
of the United States enacted pursuant thereto. All neces­
sary averments as to jurisdiction of the Federal Court 
were made.

Bv said petition it was alleged that on the 24th day of 
October, 1934, plaintiff, being then a duly qualified elector, 
applied to the defendant Marion Parks, plaintiff’s precinct 
registrar, for registration as an elector, but that said de­
fendant refused to register said plaintiff, solely on account 
of his race, color, and previous condition of servitude, said



12 I. W. L ane v. Jess W ilson, et al.

refusal by said defendant being pursuant to a conspiracy 
for said purpose among said defendants, acting under color 
of certain statutes of the State of Oklahoma, especially 0. 
S. 1931, section 5654, supra, said section being part of the 
Oklahoma Registration Law of 1916, which said Registra­
tion Law (Sec. 5654) plaintiff alleged to be unconstitutional, 
null and void, violative of the Fourteenth and 1 ifteentli 
Articles of Amendment to the Constitution of the United 
States and also violative of the laws of the United States, 
to-wit, R. S. Secs. 2004,1979.

Plaintiff further alleged that said conspiracy to dis­
franchise the Negroes of Wagoner County had been in 
force and operation since the enactment of said 1916 Reg­
istration Law, and that said conspiracy had existed among 
and between said defendants and their respective prede­
cessors in office.

Plaintiff alleged that he had been damaged in the sum 
of $5,000.00, and prayed for judgment in said sum for ac­
tual damages, and for like sum as punitive damages.

(2 )  Joint A nsw er o f D efendants Wilson and Parks (Ri
pp. 11-16).

The defendants (respondents herein) Wilson and 
Parks filed their joint answer to petition of plaintiff, where­
in they denied generally and specifically each and every 
allegation of said petition, except such as were specifically 
admitted in said answer (R., p. 11).

The defendants admitted that they were state officials, 
respectively, as alleged in petition of plaintiff. It was de­
nied that a Federal question was involved. Said defend­

ants denied any conspiracy, or any wrongful or illegal acts 
on their part, but alleged that their acts in the premises 
were under and pursuant to the Oklahoma R egis trad®



B rief of P etitioner, 13

Law of 1916, especially 0. S. 1931, section 5654, which law 
defendants alleged to be constitutional and valid.

Said defendants in said answer further alleged that 
if it were true that said plaintiff was denied registration as 
an elector, said plaintiff had the right under said Registra­
tion Law of Oklahoma (0. S. 1931, Sec. 5654), to appeal to 
the District Court of Wagoner County to have reviewed 
the action of the precinct registrar ; that the decision of 
the District Court of Wagoner County on said question was 
reviewable on appeal by the Supreme Court of the State; 
and that by his failure to prosecute proceedings in said 
state courts, as provided by said statute, said plaintiff Lane 
had waived his statutory (under aforementioned Acts of 
Congress) right herein mentioned, and should not be heard 
to complain in this action (R., p. 15).

It was further alleged that under said state statutes 
plaintiff Lane was not entitled to be registered at the reg­
istration period for said year 1934, same being a period 
of special registration for newly qualified electors, at which 
time plaintiff was not entitled to be registered, even though 
he possessed the necessary qualifications (R., p. 15).

The defendants contended, in effect, that relief should 
be denied plaintiff, because by his petition he sought in­
consistent remedies, in that he prayed damages of the de­
fendants for their refusal to register plaintiff under the 
Registration Laws of Oklahoma, which law plaintiff, as 
alleged in said answer, contended to be unconsitutional and 
void (R., p. 16).

It was further denied that plaintiff had been damaged, 
and it was prayed that his petition be dismissed (R„, p. 16).



(3) A nsw er o f D efendant John Moss (R., pp. 17-18).

The defendant (respondent herein) John Moss filed 
his answer, denying the material allegations of the peti­
tion of plaintiff, as against said defendant. He denied that 
plaintiff had been damaged in sum of $5000.00, and prayed 
that the petition be dismissed and that said defendant have 
judgment for his costs (R., p. 18).

(4) Replies o f Plaintiff (R., pp. 18-21, 22).

Plaintiff (petitioner) filed replies, respectively, to the 
above mentioned answers, said replies denying material 
allegations of new matter in said answers, thereby making 
np the issues involved.

( b )  Evidence.

(1) Evidence o f  Plaintiff (R., p. 27, e t seq .)

I. W. LANE, plaintiff, testified in his own behalf sub­
stantially as follows:

That witness was approximately 70 years of age, was 
born in Alabama, and had lived in the town of Redbii'd, in 
the election precinct known as Gatesvilie Precinct No. 1, 
Wagoner County, Oklahoma, since 1908 (R., p. 27).

That witness voted in Alabama, and in Oklahoma in 
1910 and in 1912, but that witness had not voted since 1912; 
he could not vote in 1914 because the Grandfather Clause 
was then in operation (R., p. 20); and he could not ever 
get registered under the Registration Law of 1916, al­
though he has made application for registration during 
each registration period, commencing with that of 19k 
(R„ p. 28).

That during the registration period for the year 19k 
witness made application for registration to one W o rkm an,

14 I. w. L ax k. v. Jess W ilson, et al.



B r i e f  o f  P e t i t i o n e r . 15

his precinct registrar, and said Workman stated to plain­
tiff that he did not have the registration books—that he 
had returned them to some other officials (R., p. 28).

That in 1918 and also in 1920 witness made application 
for registration to one Mr. Atterberry, his precinct reg­
istrar at said time, who told witness on each occasion that 
said registrar did not have orders (from high officials) 
to register colored people (R., p. 28).

That, likewise, witness tried to register in 1922, again 
in 1924, and during each subsequent registration period 
(R., p. 28).

During these times when witness attempted to find the 
registrars he always had trouble locating them—they would 
usually be absent from home. Witness would have to re­
turn to their homes three or four times—sometimes about 
sun-up or sun-down. That when witness would locate the 
registrar the latter would tell him that he did not have 
any orders to register witness (R., p. 29).

In 1934 witness spoke to the County Registrar, Jess 
Wilson, about the refusal of precinct registrars to regis­
ter witness. Witness had looked for a precinct registrar 
for three or four days, but could not find one. Then he 
inquired of said Wilson as to who had been appointed as 
registrar in plaintiff’s precinct. Wilson replied that at 
that time he had not appointed a registrar for said precinct, 
but that he would appoint one within a day or two. A day 
or so later, after he had spoken to Wilson, witness ascer­
tained that Parks was precinct registrar, and witness, ac­
companied by others, made application to Parks for reg­
istration. At said time the registration books had been 
open three or four days. Said books open twenty days 
before an election and close ten days before an election 
(R., p. 29).



That just before the general election of (November 
6) 1934, and while the registration books were open, wit­
ness, accompanied by Washington Taylor, J. M. Jackson,
E. T. Cullam, and Jim Ellis, went before Marion Parks, 
the precinct registrar of Gatesville Precinct No. 1, and de­
manded registration as an elector; that said Parks replied, 
“ Well, I was instructed by the ‘higher ups’ [Jess Wilson, 
County Registrar, and John Moss, County Judge] not to 
register any colored people. ’ ’ Parks did not register plain­
tiff, nor give him a registration certificate (R., p. 29).

The testimony of plaintiff Lane concerning the re­
fusal of Marion Parks, as precinct registrar, to register 
said Lane or those with him at the time mentioned, was 
corroborated by the testimony of J. A. Cullam (R., p. 30- 
32), by that of Washington Taylor (R , pp. 32-33), and by 
testimony of J. M. Jackson (R., pp. 33-34).

THE REGISTRATION RECORDS of Wagoner Coun­
ty, Oklahoma, for election years 1916 to 1936, inclusive, 
were introduced in evidence, and said records showed that 
in said Wagoner County, Negroes were registered as elec­
tors as follows (R., p. 36) :

During the registration period of 1916, the first reg­
istration under the 1916 Registration Law, there were 
eleven Negro electors registered. There was no further reg­
istration of a Negro elector in said county until the year1 
1926, and in each of the years 1926 and 1928 there was reg­
istered one Negro as an elector. From 1928 down to 1931 
there was not a single Negro elector registered in said Coun­
ty. In 1934, at the registration period of which Lane n 
specifically complaining, there were registered in said coun­
ty fifty (50) Negro electors, but said County Registrar. 

Jess Wilson, struck from the record the names of each d : 
said fifty who were so registered. To the introduction d

16 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  P e t i t i o n e r . 17

said Registration Records the defendants objected and saved 
exceptions (R., p. 36).

Plaintiff also introduced in evidence, as his “ Exhib­
it No. 1” , a transcript of proceedings had before defend­
ant Jess Wilson, County Registrar, for cancellation of the 
registration of the aforementioned fifty Negro electors. To 
the introduction of this evidence defendants saved excep­
tions (R., pp. 36-37). The material parts of said transcript 
are set forth in the record herein at pages 64-74, and will 
be more particularly mentioned in this brief at pages 69-70.

PLAINTIFF’S “ EXHIBIT NO. 2 ” , IT. S. Census 
Report for year 1930, was duly introduced in evidence (R., 
p. 38).

Said census report showed that the total population 
of Wagoner County, Oklahoma, in 1930 was 22,428, of 
whom 6,753 were Negroes; that Porter township in said 
county had a ivhite population of 925, and a Negro popula­
tion of 939; that Tullahassee township had a white popu­
lation of 298, and a Negro population of 1,537; that Gates- 
ville township had a white population of 1388, and a Negro 
population of 920'; and that the town of Redbird, where 
plaintiff Lane resided (and of which he had been Mayor, 
R., p. 39), had a population of 218, all of whom were Ne­
groes. The population of the other townships and towns 
of said Wagoner County, by races, is shown by said census 
report. The defendants objected to said evidence, and saved 
exceptions to the admission thereof (R., p. 37).

PLAINTIFF’S EXHIBIT NO. 3, Summary of Ages 
of Electors Registered in Gatesville Election Precinct Nu. 
1, of Wagoner County, during the registration of 1934, as 
shown by the registration records, was introduced in evi­
dence (R., p. 74).



This summary shows that during the registration pe­
riod of 1934, when defendant Parks refused to register 
plaintiff Lane, said Parks, as registrar, registered 149 
electors (all white), 18 of whose ages were 21 years, 18 
were 22 years of age, and the ages of the others ranged 
from 23 years up to 60 years and over (R., p. 74).

Plaintiff announced that he did rest (R., p. 39).

(2) Evidence on Behalf o f Defendants (R., p. 39, et seq.).

JAMES L. PACE, witness for defendants, testified 
substantially as follows (R., p. 39, et seq.):

That in 1916 witness lived in Gatesville Precinct No.
1, Wagoner County, Oklahoma, and was Precinct Regis­
trar in said precinct for the entire year of 1916. That wit­
ness knew plaintiff Lane, but that said Lane did not in 1916 
present himself to witness for registration (as an elector) 
(R , p. 40).

On cross examination, the witness James L. Pace tes­
tified that he did not register any Negroes in 1916; that 
no Negroes applied to witness in 1916 for registration • and 
that witness did not refuse any Negroes registration. That 
in 1916 witness had only a passing acquaintance with plain­
tiff Lane, and can remember distinctly that 21 years ago 
said Lane did not apply to witness for registration. That 
witness registered all Negro voters who applied in that , 
precinct; but does not remember how many Negroes wit­
ness registered (R., p. 40).

The testimony of the witness James L. Pace to effect 
that he was Precinct Registrar of Gratesville Precinct No.
1, Wagoner County, during the year 1916 was corroborated 

by the testimony of five other witnesses for defendants 
(R., pp. 41-42).

I S  I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  P e t i t i o n e r . 19

J. L. Pace, witness for defendants, testified further 
on cross examination as follows (R., p. 43, et seq.):

That witness remembers registering a Mr. Puissner, 
with whom witness was well acquainted. That witness did 
not know how long Mr. Puissner had been living in said 
precinct, he having lived near witness all the while up to 
registration (in 1916). That in November, 1916, witness 
registered said Puissner who was 49 years of age, and a 
full-blooded Indian; and witness registered a Mr. Childers, 
white, 24 years of age (R., p. 44).

It was shown in open court that the ages of electors 
registered, as shown by Registration Records of Wagoner 
County, varied from 21 years up to 80 years (R., p. 44).

STOUT ATTERBERRY, witness for defendants, tes­
tified substantially as follows (R., p. 42, et seq.):

That witness lived in Gratesville Precinct No. 1, Wag­
oner County, Oklahoma, and had lived there for 25 years. 
That witness registered in 1916, before one Jim Pace as 
precinct registrar. That witness was not registrar in 1916, 
and does not believe Lane applied to witness for registra­
tion in said year.

On cross examination, the witness Stout Atterberry 
testified substantially as follows (R., p. 42, et seq.):

That witness was precinct registrar in 1920, just be­
fore the primary election, but that witness was not regis­
trar for the entire period, said witness having served as 
registrar for part of said period. That the registration 
books were sent back to witness just before the general 
election, at which time witness was out working; and wife 
of witness advised him that the registration books had 
come, but that witness refused to serve further for that 
registration period. That on that night or the next night



20 I .  W .  L a n e  y .  J e s s  W i l s o n ,  e t  a l .

plaintiff Lane and others came to home of witness while 
the registration hooks were there, to be registered, but 
that witness did not register Lane nor anybody else at said 
time. That the registration books were at the home of wit­
ness a day or two, but that someone got them while wit­
ness was absent. Witness understood later that one Work­
man got said registration books (R., p. 43).

JESS WILSON, defendant, testified for defendants 
substantially as follows (R., p. 45, et seq.):

That at time of trial witness lived in Tulsa County, 
but from the 3rd day of June, 1920, until 1935, witness lived 
in Porter, Wagoner County, Oklahoma. That in 1932 wit­
ness succeeded one Lawrence as County Registrar of Wag­
oner County, and served as such from 1932 until 1935.

That witness became acquainted with plaintiff Lane 
about 1920. That before the general election in 1934 Lane 
and three or four other persons came to witness, and in­
quired of witness as to who was going to be precinct regis­
trar for Gatesville Precinct No. 1; and Lane inquired if 
witness had appointed one Lawrence; witness told Lane 
that said Lawrence had resigned as precinct registrar, but 
that witness would try to appoint another registrar on that 
day (R., p. 45).

That on the day following the above conversation with 
Lane witness appointed the defendant Marion Parks, as 
Precinct Registrar in Gatesville Precinct No. 1, northwest 
of Redbird, Oklahoma. That said Parks, a well known cit­
izen of that community, served as registrar during that 
period of registration.

That witness did not in 1934, or at any other time, in­
struct any precinct registrar not to register Negro electors; 
nor did witness enter into any understanding to said effect.



B r i e f  o f  P e t i t i o n e r . 21

That when witness gave Parks the registration books, wit­
ness told him that Mr. Moss (respondent) would instruct 
him in regard to the registration laws. That at said time 
Mr. Moss was County Judge of said Wagoner County (R., 
p. 46).

That witness did not have any conversation, nor agree­
ment, nor understanding with Judge Moss as to the instruc­
tions the latter was to give Parks (R., p. 46).

On cross examination the defendant Jess Wilson testi­
fied (R., p. 46) :

That while witness was County Registrar some Ne­
groes were registered, but, at the request of Judge Moss 
and two others, witness, as County Registrar, struck said 
names (of registered Negroes) from the record. That some 
of the persons whose names were stricken from the regis­
tration record were registered by a man named Goddard, 
whom witness had appointed as (precinct) registrar. That 
in the majority of cases in appointing registrars they were 
given commissions, but that witness does not believe said 
Goddard had a commission, he having been appointed just 
by oral agreement (R., p. 46).

That the names stricken from the registration record, 
as aforestated, were stricken “ because of a higher decision 
(by Jess Wilson) on the question of the legality of their 
being competent voters.”  (Italics and parentheses, ours.) 
(R., p. 46). Transcript of part of said proceedings before 
witness, as County Registrar, is set forth in record, pages 
64-74.

JUDGE JOHN MOSS, defendant (respondent), testi­
fied on behalf of defendants substantially as follows (R., 
P- 47, et seq.):

That witness was County Judge of Wagoner County,



22 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

Oklahoma, and had been such since January, 1933; that 
witness was representative in the Legislature in 1910, be­
coming County Attorney of Wagoner County by appoint­
ment in December, 1919, that being the first time witness 
was County Attorney of Wagoner County. That witness 
was not County Attorney of Wagoner County in 1916. That 
witness did not as charged by plaintiff, enter into any con­
spiracy, understanding, or agreement with anyone to de­
prive plaintiff Lane or other Negroes in Gatesville Pre­
cinct No. 1 of their right or alleged right to vote. That 
witness did not ever instruct his co-defendant Marion Parks 
in any way whatsoever not to register plaintiff or other 
colored persons (R., p. 47).

That co-defendant Parks advised with witness about 
his duties as registrar, immediately prior to his service as 
such in 1934. That witness had a letter which had been turn­
ed over to him by one Bigger staff, a newspaperman in Wag­
oner. Witness just read said letter to Parks, and when wit­
ness was through reading said letter to him he told Parks 
that said letter practically stated the law as witness un­
derstood it, and as witness has been interpreting it since 
1920. This letter, from a Negro “ Democratic editor”  in 
Muskogee to said Mr. Biggerstaff, and purporting to give 
to the Oklahoma Registration Laws of 1916 an interpreta­
tion similar to that given them by the defendants (respond­

ents) is set forth in the record at page 48.

MARION PARKS, defendant (respondent), testified 

as witness for defendants substantially as follows (R., P- 
49, et seq.):

That witness was Precinct Registrar in 1934 in Gates- 
ville Precinct No. 1, in Wagoner County, Oklahoma. That 
witness knows plaintiff Lane. That witness did not state 
to Lane and others, on the occasion to which Lane referred



B r i e f  o f  P e t i t i o n e r . 23

in his testimony, that witness had been instructed by the 
“ higher ups”  not to register the Negroes. That witness did 
not say anything of that sort, that witness did not tell 
Lane that witness had been instructed by Judge Moss or 
by Jess Wilson not to register Negroes. That nothing of 
that sort occurred (R., p. 49).

That witness remembered Judge Moss reading to wit­
ness from the letter mentioned in Moss’ testimony. That 
witness did not remember the exact words had with Judge 
Moss in said conversation, but did remember inquiring of 
Judge Moss about registering people who had become 21 
years of age, and Judge Moss stated to witness “ You reg­
ister all that have become twenty-one since last registra­
tion.”  That Judge Moss advised witness to register all 
whom he thought to be legal voters. That at said time wit­
ness did not have any understanding, agreement, conspir­
acy or anything of that sort with the defendants, nor with 
either of them, whereby it was understood that witness 
was to prevent Negroes from registering. That witness 
did not have any malice or ill feeling against these col­
ored people. That witness was acting in good faith, hon­
estly and fairly trying to follow the law, treating all alike, 
telling them the law, whether white or colored (R., p. 
50).

On cross examination, the defendant Marion Parks 
testified substantially as follows (R., p. 50, et seq.):

That witness did register white people from 21 years 
°t age up, the exact number, witness being unable to re­
member, nor does witness remember their ages, nor all 
°f the people registered at that time. That witness did 
not register plaintiff Lane, because Lane had no papers 
showing that he had ever registered. That witness in­
quired of Lane if he had ever registered, to which Lane 
replied in the negative; and witness told Lane, “ I can’t



24 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

register you, if you have never registered, unless you 
have become 21 since the last registration.”  (R., p. 50). 
That witness asked the white people whom he registered 
the same question. That said white people had papers 
to prove that they were eligible voters. That the white 
electors registered by witness did not have certificates, 
they had proof they were eligible voters—they had wit­
nesses to prove it. The basis of the eligibility was that 
they had been in the state one year, in the county six 
months, and in the township thirty days, witness mean­
ing those electors who had just become 21 years of age 
and had no certificate of registration. Those over 21 had 
certificates from their precincts and they had voted. That 
witness registered 86 electors that proved that they had 
registered (R., p. 50).

That witness did not mean to tell the court and jury 
that every person over 21 years of age, whom witness 
registered, was a person who had a transfer—they had 
proved in different ways that they were legal voters. 
Some had lived in the precinct different lengths of time, 
but there were none that had lived in the precinct that 
had not registered since they moved in, since the last reg­
istration. All that witness registered in 1934, were those 
that had moved in since the last registration period. That 
those electors who moved in had to prove to witness that 
they were legal voters, and in other cases they had reg­
istration certificates, and exhibited them to witness (R-> 
p. 51).

(3) Rebuttal evidence o f plaintiff (R., p. 51).

I. W. LANE, plaintiff, testified on rebuttal that the 
statement of Mr. Parks to the effect that he (Parks) said 
nothing to witness about an order from the ‘ ‘ higher ups’ 
was false.



B r i e f  o f  P e t i t i o n e r . 25

Both sides announced in open court that they did 
rest (R., p. 51).

( c )  Proceedings on Verdict, Opinion of Trial Court, Mo­
tion for New Trial, and Judgment.

(1) Motion for a Directed Verdict in favor of the de­
fendants and each of them, was by them made in open court 
(after argument and request by plaintiff for instructions), 
said motion of defendants was sustained, to which plaintiff 
objected and saved exceptions (R., pp. 52, 62).

(2) Request for Instructions to the jury was made by 
plaintiff in writing. Each separate written request for in­
struction made by plaintiff was upon the theory that the 
qualifications of an elector were those prescribed by the 
Oklahoma Constitution (Art. I ll, Sec. 1, Oklahoma Const.; 
0. S. 1931, See. 13446); whether there was a conspiracy 
among the defendants; and upon the question of damages 
(R., pp. 52-58); and that the Oklahoma Registration Law 
(Sec. 5654) violated the Fourteenth and Fifteenth Amend­
ments. The trial court refused to give any of the instruc­
tions requested by plaintiff, to the refusal of each of which 
plaintiff objected and saved exceptions (R., pp. 52-58).

(3) Opinion of trial court was rendered by the judge 
in deciding said case (R., pp. 58-61). In its opinion the trial 
court stated * * The sole question pertinent to the de­
termination of the issues in this case, whether section 5654, 
Compiled Statutes 1931, is a valid statute and constitutional 
under the Fourteenth and Fifteenth Amendments to the 
Constitution of the United States * * * ”  (R., p. 59). By 
said opinion the trial court found said statute to be con­
stitutional and valid and, accordingly, directed the jury 
to return a verdict for the defendants and against plaintiff 
(R-, p. 61). Such verdict was duly returned and filed in



open court (R., p. 61), to all of which plaintiff objected and 
saved exceptions.

(4) Motion for new trial was in due time and form 
filed by plaintiff, and therein were alleged errors accord­
ing to the theory of the case as contended by plaintiff, here­
inabove set forth (R., pp. 62-63). Said motion for new trial 
was (in journal entry) denied by the trial court, to which 
plaintiff objected and saved exceptions (R., p. 64).

(5) Judgment was entered in favor of the defendants 
and against plaintiff, to all of which plaintiff (this petition­
er) objected and saved exceptions (R., pp. 24-26); and 
plaintiff in open court gave notice of his intention to appeal 
to the Circuit Court of Appeals.

(d )  Proceedings to Perfect Appeal.

In the trial court, and at the same time of the rendi­
tion of final judgment, plaintiff filed in due and proper 
form his petition for appeal (R., pp. 77-78); assignment of 
errors and prayer for reversal (R., pp. 79-82), by said as­
signment of errors plaintiff, in effect, assigning the errors 
specified herein, infra, pages 28-29, and also bond upon ap­
peal (R., pp. 82-83). In open court order was made allow­
ing said appeal (R., pp. 83-84); the appeal bond was ap­
proved (R., p. 83); and citation was duly issued and in 
open court served upon the defendants (R., pp. 84-85).

The bill of exceptions in said court was duly prepared, 
settled and filed (R., pp. 26-76); and the appeal herein was 
duly docketed in the Circuit Court of Appeals, pursuant 
to 28 U. S. C., Secs. 225 (1 ); Judicial Code, Sec. 128 amended 
by Act of Feb. 13, 1925; and pursuant to the rules of said 
Court in such case made and provided.

26 I .  W .  L a n e  y .  J e s s  W i l s o n ,  e t  a l .



B e i e f  o f  P e t i t i o n e e . 27

( e )  Opinion and Judgment of the Circuit Court of Appeals.

On September 19th, 1938, said United States Circuit 
Court of Appeals rendered its opinion, affirming the judg­
ment of the trial court, and holding the aforementioned reg­
istration statutes of the State of Oklahoma not to be in 
violation of the Constitution of the United States (R., p. 
93-101); and on said date said Circuit Court of Appeals 
rendered its judgment, to the effect aforestated (R., p. 
101). To review said opinion and judgment of the Circuit 
Court of Appeals, this petitioner, on November 7th, 1938, 
filed in this court his Petition for Writ of Certiorari; which 
Writ of Certiorari was by this court granted on December 
12th, 1938; and said cause is now before this Honorable 
Court on said Writ of Certiorari.



28 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

D„
S P E C I F I C A T I O N  of E R R O R S .

The errors assigned by this petitioner upon appeal to 
the Circuit Court of Appeals, are set forth in the record at 
pages 79-82; and the errors specified in the Petition for 
Writ of Certiorari herein are to similar effect (Petition for 
Writ of Certiorari, p. 10). The effect of said assigned and 
specified errors, respectively, intended to be urged herein 
by respondent are herein specified as follows, to-wit:

I .

The opinion of the Circuit Court of Appeals here­
in is so irregular and patently erroneous, and said 
court in ignoring controlling decisions of this Supreme 
Court of the United States, so far departed from the 
accepted and usual course of judicial proceedings, as 
to warrant a reversal of the judgment of said Circuit 
Court of Appeals.

I I .
It appearing from the face of the Oklahoma Reg­

istration Law of 1916, as well as from the operation 
of said law as disclosed by the record herein, that said 
law is an attempted revitalization of the illegal Grand­
father Clause (held invalid by this Court in the Gwm 
Case); and that said Registration Law is the same in­
valid law in a new disguise of words, having the same 
discriminatory and unconstitutional intent, operation, 
and effect, and violative of the 15th Article of Amend­
ment to the Constitution of the United States; the Hon­
orable Circuit Court of Appeals for the Tenth Circuit 
erred in affirming the judgment of the trial court, and 
in holding and adjudging that said Registration Law 
is valid and not unconstitutional.

I I I .
The said Registration Law of the State of Okla­

homa, as made and enforced by the State, abridges the



B r i e f  o f  P e t i t i o n e r . 29

privileges and immunities of petitioner Lane and of 
other citizens of the United States of his color and sim­
ilarly situated, and deny them the equal protection of 
the laws; said Registration Law is violative of the 14th 
Article of Amendment to the Constitution of the Unit­
ed States, and said issue was duly raised in said court; 
and said Honorable United States Circuit Court of 
Appeals for the Tenth Circuit erred in holding and ad­
judging said Registration Law to be valid and consti­
tutional without in any manner passing upon said is­
sue so made under the 14th Article of Amendment to 
the Constitution of the United States.

IV .
It appearing that petitioner Lane was duly quai­

led as an elector under Section 1 of Article III of Ok­
lahoma Constitution (Vol. II, 0. S. 1931, p. 1406, Sec. 
13446; Appendix hereto, p. 76) but that pursuant to 
said Oklahoma Registration Law of 1916, as enforced 
by respondents, said petitioner was forbidden to reg­
ister as an elector, though so duly qualified, and for 
said reason said Registration Law violated said pro­
vision of said state Constitution; and alleged error to 
said effect was duly assigned in the Circuit Court of 
Appeals; and said Circuit Court of Appeals erred in 
holding said Registration Law to be valid and consti­
tutional, without in any manner observing said issue 
so made under the state Constitution.

V.
Upon the trial there was adduced abundant evi­

dence of a conspiracy between and among the respond­
ents, acting pursuant to said state laws, in the depriva­
tion from petitioner of his rights under the constitu­
tion and laws of the United States; and said Circuit 
Court of Appeals committed error in holding and ad­
judging that there was no conspiracy, said question 
being properly determinable by a jury, and not by the 
eour-t; and in so doing the Circuit Court of Appeals vio­
lated the 7th Amendment.



E .
A R G U M E N T .

P r o p o s i t i o n  I .

The opinion of the Circuit Court of Appeals herein is 
so irregular and patently erroneous, and said court, in ig­
noring controlling decisions of this Supreme Court of the 
United States, so far departed from the accepted and usual 
course of judicial proceedings, as to warrant a reversal of 
the judgment of said Circuit Court of Appeals.

It is charged in the petition of plaintiff (R., p. 9) that 
said Oklahoma Registration Law, Sec. 5654, 0. S. 1931, is 
“ an illegal and cunning attempt to achieve the illegal pur­
pose sought by the grandfather clause and to evade the 
effect of the decision of the Supreme Court of the United 
States”  in Guinn v. United States, swpra. This contention 
is fully established, both by a careful comparison of said 
two laws (see them: Appendix, pp. 74, 77), and by consider­
ation of the results they have, respectively, produced. Said 
Grandfather Clause purported to establish a universal 
literacy test, but exempted therefrom the favored class 
consisting of those (whites) who could vote on January 
1,1866, and their lineal descendants.

Said registration law, Sec. 5654, 0. S. 1931, purports 
to require universal registration as a prerequisite to the 
right of suffrage, but exempts therefrom the same favored 
class, the white electors, who were favored by the Grand­
father Clause, by continuing to those electors the advantage 
they enjoyed under the void grandfather law in effect at 
the time of the 1914 election.

In the opinion in the case of Guinn v. United States, 
supra, the Grandfather Clause was held unconstitutional, 
not because the State was without power to establish a lit-

30 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B b i e f  o f  P e t i t i o n e r . 31

eracy test, but because of the exemption from the literacy 
test of those coming within the classification of January 1, 
1866.

Similarly, this petitioner has nowhere contended that 
the mere requirement of universal registration would vio­
late any federal constitutional provision; but said peti­
tioner did, and does, most emphatically insist that it is 
unconstitutional for the Oklahoma registration statute to 
require registration of those electors, who, like petitioner 
Lane, were duly qualified but were prevented by an uncon­
stitutional law from voting at the 1914 election, permitting 
such registration within one ten-day period during a life­
time; and at the same time to exempt from registration 
those who enjoyed an illegal and unconstitutional advan­
tage at said 1914 election.

The opinion of the Circuit Court of Appeals (R., p. 
100) states with absolute finality:

“ Certainly there is nothing on the face of the 
registration statute that even tends to support appel­
lant’s claim of discrimination between white and Ne­
gro electors, * * (Italics ours.)

That the above observation (as to the “ face”  of the 
registration law) is of no significance in this judicial inquiry 
appears from the same opinion (R., p. 101):

“ It may be, and we take it as true, that inasmuch 
as the so-called grandfather clause in the Constitution 
of Oklahoma had not been declared void as violative 
of the Fifteenth Amendment until 1915 no Negroes 
voted at the 1914 election * *

And said observation is nothing more than a re-state- 
Ment of the proposition wholly repudiated by the opinion 
of Mr. Chief Justice W hite  in the Guinn case, supra. Said 
the learned Chief Justice (238 U. S. 347, at p. 360, 59 L. 
ed- 1340, at p. 1346) :



32 I. W. L ane v. Jess W ilson, e t  al.

“ The real question involved, so the argument of 
the Government insists, is the repugnancy of the stand­
ard which the amendment makes, based upon the con­
ditions existing on January 1st, 1866, because on its 
face and inherently considering the substance of things, 
that standard is a mere denial of the restrictions im­
posed by the prohibitions of the 15th Amendment, and 
by necessary result re-creates and perpetuates the very 
conditions which the Amendment was intended’ to de­
stroy.”  (Italics ours.)

And at page 364 of the U. S. Reporter, page 1348 of the 
L. ed.:

“ It is true it contains no express words of an ex­
clusion from the standard which it establishes of any 
person on account of race, color, or previous condi­
tion of servitude, prohibited by the 15th Amendment, 
but the standard itself inherently brings that result 
into existence since it is based purely upon a period 
of time before the enactment of the 15th Amendment, 
and makes that period the controlling and dominant 
test of the right of suffrage. ’ ’

What difference there may be between the Grandfather 
Clause and the registration law is a difference in form and 
phraseology—none in substance—the former established a 
standard based purely upon a period of time before the 
enactment of the 15th Amendment, and sought to perpetuate 
conditions prohibited by said Amendment; and the regis­
tration law established a standard based upon a period of 
time (1914) when said Amendment was flagrantly disre­
garded and violated, and sought to perpetuate said stand­
ard despite the mandate of the Supreme Court in said Ĝ iinn 
case, infra.

Not only is said registration law of 1916 shown to be, 
in legal and constitutional contemplation, identical with 
the Grandfather Clause, and its administration shown by



B rief of P etitioner. 33

the record herein to have achieved a similar result, but 
said opinion of the Circuit Court of Appeals recites in sup­
port of said registration law the very reasoning offered in 
support of the Grandfather law itself. In the opinion of 
the Supreme Court of Oklahoma, purporting to uphold the 
original Grandfather Clause, Atwater v. Hassett, et al. 
(1910), 27 Okl. 292, at p. 310, this language was employed:

“ In Pope v. Williams, et al., 193 U. S. 621, 24 
Sup. Ct. 573, 48 L. ed. 817, Mr. Justice Peckham, in 
delivering the opinion of the court, said:

“  * * In other words, the privilege to vote in
a state is within the jurisdiction of the state itself, to 
be exercised as the state may direct, and upon such 
terms as to it may seem proper, provided, of course, no 
discrimination is made between individuals, in viola­
tion of the Federal Constitution.’ ”

And in the opinion of the Circuit Court of Appeals below 
(R., p. 100), this language is found:

“ In Pope v. Williams, 193 U. S. 621, the court
said:

“  ‘ In other words, the privilege to vote in a State 
is within the jurisdiction of the State itself, to be 
exercised as the State may direct, and upon such terms 
as to it may seem proper, provided, of course, no dis­
crimination is made between individuals in violation 
of the Federal Constitution.’ ”

In said Atwater-Hassett opinion, at page 313 of 27 Okla­
homa Reporter:

“ In practically every state of the Union, on Jan­
uary 1, 1866, persons were disqualified from voting 
who had been convicted of infamous crimes, unless such 
disqualification had been removed, etc. In addition, 
an alien residing in this country on January 1, 1866, 
neither having become a naturalized citizen nor having 
declared his intention to become a citizen of the United



States, was not entitled to vote in any of the states. 
* * * Such alien residing in the United States on Jan­
uary 1, 1866, neither being entitled to vote in the place 
of his residence nor under any organized government 
where he had previously resided or been a citizen of, 
and his decendants, would also be subject to this ed­
ucational qualification, coming within the excluded 
class as of the date of January 1, 1866.”

In the opinion of the Circuit Court of Appeals below (R., 
p. 101):

“ Under Section 5654 all who voted at the elec­
tion in 1914 were placed on the registration books and 
certificates were issued to them by the registrars with­
out applications therefor. It may be, and we take it 
as true, that inasmuch as the so-called grandfather 
clause in the Constitution of Oklahoma had not been 
declared void as violative of the Fifteenth Amendment 
until 1915 no Negroes voted at the 1914 election, but 
at least many of them became qualified electors prior 
to the registration period in 1916, and Section 5652 
gave notice that no elector would be permitted to vote 
at any election unless he should register as provided 
by the act. There were probably also some whites who 
were qualified to vote at the 1914 election who did not 
vote. They were on the same footing as to registration 
as were the qualified Negroes. There was no distinc­
tion between them. Any elector, white or Negro, who 
applied and was denied registration, had the same right 
to carry the issue thus made to the Supreme Court for 
determination.”  (Italics ours.)

Said Atwater v. Hassett opinion was relied upon by 
the defendants in the Guinn case, supra, and it was wholly 
repudiated by the decision therein rendered by this Court. 
See note to said opinion, 59 L. ed. 1340, at page 1341. That 
this petitioner cited and relied upon said controlling Guinn 
opinion by this court appears from a recitation, in said 
opinion of the Circuit Court of Appeals, of the contention

34 I. W. L ake v. Jess W ilson, et al.



B rief of P etitionee. 35

of petitioner (R., p. 99). Thus, said opinion of the Circuit 
Court of Appeals tacitly follows an opinion of a state court, 
which state court opinion had been wholly repudiated by 
the decision of this Supreme Court of the United States; 
and said opinion of the Circuit Court of Appeals fails in 
anywise even to mention said Guinn decision which was di­
rectly in point and controlling, or any other respectable au­
thority, and it fails in anywise to observe other decisions 
of this Court upon the same proposition. See also: Myers 
v. Anderson (1915), 238 U. S. 368, 59 L. ed. 1349; Supreme 
Court Rule 38, par. 3 (b ) ; 87 Univ. of Penn. Law Review, 
January, 1939, p. 348, discussing said opinion of the Cir­
cuit Court of Appeals hereunder reviewed, and citing au­
thorities.

P r o p o s i t i o n  I I .

It appearing from the face of the Oklahoma Registra­
tion Law of 1916, as well as from the operation of said law 
as disclosed by the record herein, that said law is an at­
tempted revitalization of the illegal Grandfather Clause 
(held invalid by this Court in the Guinn case); and that 
said Registration Law is the same invalid law in a new dis­
guise of words, having the same discriminatory and uncon­
stitutional intent, operation, and effect, and violative of the 
15th Article of Amendment to the Constitution of the Unit­
ed States; the Honorable Circuit Court of Appeals for the 
Tenth Circuit erred in affirming the judgment of the trial 
court, and in holding and adjudging that said Registration 
Law is valid and not unconstitutional.

Point 1. Said Section 5654, O. S. 1931, is by its legal 
effect violative o f the 15th Amendment and violative of 
R. S. Sec. 2004; and the opinion o f the Circuit Court o f A p ­
peals, holding said law to be constitutional and valid, is 
contrary to the decision o f this court in the case of Guinn 
V- United States, supra.



It appears that petitioner Lane was duly qualified as 
an elector, and actually voted in the State of Oklahoma 
prior to the Grandfather Clause (R., p. 27); that during 
the existence of said Grandfather Clause, and before it was 
invalidated by the decision in the Guinn case, supra, said 
petitioner, on account of said Grandfather Clause, was un­
able to vote (R., p. 28). It appears further that during every 
registration period since the enactment of said Registra­
tion Law of 1916, said petitioner has striven, unsuccessfully, 
to be registered (R., p. 28). The refusal of registration of 
petitioner for which refusal damages were sought in the 
instant case was made during the registration period, un­
der state law, just prior to the general election of 1934, at 
which election members of the Congress of the United 
States, as well as state and local officers, were to be voted 
upon. Accordingly, there does not arise in this inquiry any 
question as to the applicability of Federal laws to said elec­
tion and the registration pertaining thereto.

At the outset of any discussion of the constitutional­
ity of the Oklahoma Registration Law of 1916, or of Section 
5654 thereof, it is by this petitioner specifically admitted 
that the various states, so far as the Federal Constitution 
is concerned, have plenary power and jurisdiction in pre­
scribing the qualifications of the electors, or in providing 
for their registration; the only limitation being that the 
states must not infringe the inhibitions of the 14tli and 15th 
Articles of Amendment to the Constitution of the United 
States. This was specifically pointed out by Mr. Chief Jus­
tice W hite  in the opinion in Guinn v. United States, supra; 
and this proposition—both as to the extensive power of 
the states, and as to the inexorable effectiveness of the lim­
itations imposed by said amendments—is too universally 
accepted by both bench and bar to require argument or to 
permit extended discussion.

36 I. W . L ane v. Jess W ilson, et al.



B bief of P etitionee. 37

Accordingly, petitioner admits that Sec. 5652, 0. S. 
1931, in and of itself, and considered independently of Secs. 
5654 and 5657, is constitutional and valid, and does not in 
anywise violate either of the- aforesaid amendments to the 
Constitution of the United States. Said Sec. 5652, provides:

“ 5652. Registration Mandatory.
“ It shall be the duty of every qualified elector in 

this state to register as an elector under the provisions 
of this Act, and no elector shall be permitted to vote 
at any election unless he shall register as herein pro­
vided, and no elector shall be permitted to vote in any 
primary election of any political party except of the 
political party of which his registration certificate 
shows him to be a member.”  (Yol. I, O. S. 1931, p. 
1646.)

Petitioner further admits that had said Sec. 5654 carried 
out the requirement of registration “ of every qualified 
elector” , and enforced the requirement that “ no elector 
shall be permitted to vote in any election unless he shall 
register” —applying to all electors alike and providing for 
reasonable opportunity for registration—there would be 
no sound, constitutional objection to said Sec. 5654. But 
here comes the rub—there is buried down in the verbiage 
of said Sec. 5654 the following proviso, to-wit:

“  * * * And provided that it shall be the mandatory duty 
of every precinct registrar to issue registration cer­
tificates to every qualified elector who voted at the 
general election held in this state on the first Tuesday 
after the first Monday in November, 1914, without the 
application of said elector for registration, and, to de­
liver such certificate to such elector if he is still a 
qualified elector in such precinct and the failure to 
so register such elector who voted in such election held 
in November, 1914, shall not preclude or prevent such 
elector from voting in any election in this state * * *. 
Provided further, that each county election board in



38 I. W. L ane v. Jess W ilson, et al.

this state shall furnish to each precinct election board 
in the respective counties a list of the voters who voted 
at the election in November, 1914, and such list shall 
be conclusive evidence of the right of such person to 
vote. ’ ’

Sec. 5657, 0. S. 1931, regulating registration, provides, 
in part, as follows :

* * Except in the case of a qualified elector who voted 
at the general election held in this state on the first 
Tuesday after the first Monday in November, 1914, in 
which case it shall be the mandatory duty of the pre­
cinct registrar to register such voter and deliver to 
such voter a registration certificate and the failure to 
so register such elector and to issue such certificate 
shall not preclude or prevent such elector from voting 
at any election in this State. * * * ”  (Vol. I, 0. S. 1931, 
p. 1648.)

Sec. 1, of Article III, of the Constitution of Oklahoma 
prescribed the qualifications of an elector as follows:

“ Section 1. The qualified electors of this State 
shall be citizens of the United States, citizens of the 
State, including persons of Indian descent (native of 
the United States), who are over the age of twenty- 
one years, and who have resided in the State one year, 
in the County six minths, and in the election precinct 
thirty days, next preceding the election at which such 
elector offers to vote. Provided, that no person ad­
judged guilty of a felony, subject to such exceptions 
as the Legislature may prescribe, nor any person, kept 
in a poorhouse at public expense, except Federal, Con­
federate and Spanish-American ex-soldiers or sailors, 
nor any person in a public prison, nor any idiot or lun­
atic, shall be entitled to register and vote.”  (Vol. I, 0. 
S. 1931, p. 1406, Sec. 13446.)

When he applied to the respondent Parks for Reg­
istration, petitioner Lane was duly qualified as elector un-



B rief of P etitionee. 39

der the above-quoted constitutional provision, and was 
“ otherwise”  qualified, under R. S., Sec. 2004; but said re­
spondent Parks refused to register him because, as con­
tended by the respondent, petitioner Lane had not regis­
tered during the ten-day period in 1916, as provided by 
said Section 5654; and because, as testified by petitioner and 
others (R., p. 29), Parks had orders from the “ higher ups” , 
Moss and Wilson, not to register Negroes. In other words, 
the purport of said Section 5654, as well as the contention 
of the respondents, seems to be that petitioner Lane, as 
well as other Negroes in Oklahoma circumstanced as he 
was, formerly disfranchised by the unlawful Grandfather 
Clause, was by the terms of said statute granted only ten 
days in this life within which to register and preserve the 
privilege of franchise; otherwise, he was to be disfranchised 
forever; while the electors who voted in the election of 1914, 
obviously white, for only whites could vote under the illegal 
Grandfather Law, could continue to vote without being reg­
istered at all.

The very statement of the monstrous proposition that 
a considerable element of the duly qualified electorate of a 
state was bound, by the terms of a state statute, to register 
within a single ten-day period, under penalty of being for­
ever disfranchised; while others, without any registration, 
had preserved to them, by the terms of the same statute, the 
privilege of franchise forever, would arouse suspicion. Why 
would the state require any elector, “ otherwise”  duly qual­
ified, to register within a single, ten-dav period, under the 
penalty of being forever disfranchised!

When to this arbitrary discrimination, patent upon 
the face of the statute, is added the cunning, deceitful and 
vexatious manner in which it is administered—precinct reg­
istrars playing “ hide-and-go-seek”  w ith  Negro electors 
seeking registration (R., p. 29); the colored electors having



40 I. W. L ane. v. Jess W ilson, et al.

no definite way of knowing who is the precinct registrar 
(R., pp. 43, 45); county registrars failing or delaying to 
appoint precinct registrars in precincts with considerable 
Negro electors, or failing to provide them with registration 
books (R., p. 45); or appointing registrars who refuse to 
act (R., p. 45); or registrars requiring orders from “ high­
er-ups”  (those in charge of the corrupt political machine) 
before registering Negroes (R., p. 29)—with the entire 
“ machinery” —or machination—in actual operation, there 
can be no doubt in any just mind that said law infringes the 
inhibitions of the 15th Amendment, and also those of the 
14th.

This case is, mutatis mutandis, and in legal and consti­
tutional contemplation, identically the same case before the 
Supreme Court of the United States in Guinn v. U. S. (Okl. 
1915), 238 U. S. 347, 59 L. ed. 1340, 1347; and the principles 
announced by the learned Chief Justice in that opinion are 
imperatively applicable to this case and compellingly dis­
positive of the issue it presents. Said the learned Chief 
Justice in the opinion of this Court in the Guinn case, 
supra:

“ The inquiry, of course, here is, does the amend­
ment as to the particular standard which this heading 
embraces involve the mere refusal to comply with the 
commands of the 15th Amendment as previously stat­
ed? This leads us, for the purpose of the analysis, to 
recur to the text of the suffrage amendment. Its open­
ings sentence fixes the literacy standard which is all-in­
clusive since it is general in its expression and con­
tains no word of discrimiantion on account of race or 
color or any other reason. This, however, is immedi­
ately followed by the provisions creating the standard 
based upon the condition existing on January 1, 1866, 
and carving out those coming under that standard from 
the inclusion in the literacy test which would have con-



B rief of P etitioner. 41

trolled them but for exclusion thus expressly provided 
for. The provision is this :

‘ But no person who was, on January 1st, 
1866, or at any time prior thereto, entitled to vote 
under any form of government, or who at that 
time resided in some foreign nation, and no lineal 
descendant of such person, shall be denied the 
right to register and vote because of his inability 
to so read and write sections of such Constitu­
tion.’
“ We have difficulty in finding words to more clear­

ly demonstrate the conviction we entertain that this 
standard has the characteristics which the government 
attributes to it than does the mere statement of the 
text. It is true it contains no express words of an ex­
clusion from the standard which it establishes of any 
person on account of race, color, or previous condition 
of servitude, prohibited by the 15th Amendment, but 
the standard itself inherently brings that result into 
existence since it is based purely upon a period of time 
before the enactment of the 15th Amendment, and 
makes that period the controlling and dominant test 
of the right of suffrage. In other words, we seek in 
vain for any ground which would sustain any other in­
terpretation but that the provisions recurring to the 
conditions existing before the 15th Amendment was 
adopted and the continuance of which the 15th Amend­
ment prohibited, proposed by in substance and effect 
lifting those conditions over to a period of time after 
the Amendment, to make them the basis of the right 
to suffrage conferred in direct and positive disregard 
of the 15th Amendment. And the same result, we are 
of opinion, is demonstrated by considering whether 
it is possible to discover any basis of reason for the 
standard thus fixed other than the purpose above stat­
ed. We say this because we are unable to discover 
how, unless the prohibitions of the 15th Amendment 
were considered, the slightest reason was afforded for 
basing the classification upon a period prior to the



42 I. W. L ane v. Jess W ilson, et al.

15th Amendment. Certainly it cannot he said that 
there was any peculiar necromancy in the time named 
which engendered attributes affecting the qualifica­
tion to vote which would not exist at another and dif­
ferent period unless the 15th Amendment was in 
view.”  Guinn v. U. S. (1915), 238 U. S. 347, 59 L. ed. 
1340, at p. 1347.

The Oklahoma Constitution, Article III, Sec. 6 (Yol. 
II, 0. S. 1931, p. 1408, Sec. 13452), provided:

“ Sec. 6. In all elections by the people the vote 
shall be by ballot and the Legislature shall provide 
the kind of ticket or ballot to be used and make all 
such other regulations as may be necessary to detect 
and punish fraud, and preserve the purity of the bal­
lot; and may, when necessary, provide by law for the 
registration of electors throughout the state or in any 
incorporated city or town thereof, and, when it is 
so provided, no person shall vote at any election unless 
he shall have registered according to law.”

Said Grandfather Law having been declared violative 
of the 15th Amendment, unconstitutional and invalid, in 
the Guinn case, supra, the legislature of the state seemed 
to consider that the proper way, under the above quoted 
state constitutional provision, to keep the ballot “ pure” 
was (as it had been under the Grandfather Law) to keep 
it “ white” . Accordingly, in special session, it enacted the 
present Registration Laws of 1916, declaring an emergency 
and providing that said law should become effective, im­
mediately (Vol. I, 0. S. 1931, p. 1647). The heart and es­
sence of said registration laws, so far as the present ques­
tion of constitutionality is concerned, is embodied in Sec. 
5654, Vol. I, 0. S. 1931, p. 1646, set forth in full in Appendix 
hereto, page 74, and this entire controversy centers around 
the question whether said Sec. 5654 is unconstitutional, as 
violating the 14th and 15th Amendments to the Consti-



B rief of P etitioner. 43

tution of the United States, and further, whether said sec­
tion is an unwarranted and unconstitutional (under the 
State Constitution) restriction of the qualification of an 
elector, as provided by Section 1, Article III of the State 
Constitution (Yol. II, 0. S. 1931, p. 1406, Sec. 13446; Ap­
pendix, p. 76). The question of the validity of said section 
under the State Constitution will be discussed in this brief 
under Proposition IV, infra, page 59.

In legal and constitutional contemplation, Sec. 5654 is 
identical with the original Grandfather Clause—neither 
by express terms discriminated against the Negro by re­
ferring to color. Each purported to establish a standard, 
which standing alone, would be valid—the Grandfather 
Law imposing a literacy test; and the 1916 law requiring 
universal registration. Each purported to exempt from the 
pretended universal standard a preferred element of the 
electorate—the Grandfather Clause exempted those who 
could vote on January 1st, 1866, and their descendants, etc., 
in other words, those who had never been under slavery, 
those who were white; Sec. 5654 exempted those who had 
voted in 1914, in other words, those who had never been dis­
franchised by the Grandfather Law, those who were white. 
So far as the right of suffrage of Negroes was concerned, 
the Grandfather Clause perpetuated the disabilities of slav­
ery, despite the 15th Amendment: Sec. 5654 sought to per­
petuate the disability of the Grandfather Law—to bring 
the disability of slavery down to date, despite the decision 
of the Sup reme Court of the United States in the case of 
Guinn v. U. S., supra,. Furthermore, if six thousand seven 
hundred Negroes of a county, its entire Negro population, 
have been wholly disfranchised for twenty years, what dif­
ference does it make under the 15th Amendment to the 
Constitution of the United States, whether one calls it a 
Grandfather Law or a Registration Law!



44 I . W . L a n e  v .  J e s s  W i l s o n ,  e t  a l .

The inhibitions of the 15th Amendment are “ leveled 
at the thing, not the name” . In re: Tibureio Parrott (C. 
C. D. Calif. 1880), 1 Fed. 481, p . 515, J. S a w y e k .

This law of the State of Oklahoma, to-wit Sec. 5654, 
0. S. 1931, as well as the result its administration has 
achieved, as disclosed by the record herein, is condemned by 
a constitutional principle uniformly declared by the Su­
preme Court of the United States, and also by other courts, 
ever since the adoption of the 15th Amendment:

Slaughter-House Cases (1873), 83 U. S., 16 Wall. 
36, 21 L. ed. 394, opinion by Mr. Justice 
M iller;

U. S. v. Reese, et al. (1876), 92 U. S. 214, 23 L. 
ed 563, opinion by Mr. Chief Justice W aite;

Neal v. Delaware (1881), 103 U. S. 370, 26 L. ed.
567, opinion by Mr. Justice H a r l a n  ;

In re: Yarbrough (1884), 110 U. S. 651, 28 L. ed. 
274, opinion by Mr. Justice Miller;

Guinn v. U. S., supra (1915), 238 U. S. 347, 59 
L. ed. 1340, opinion by Mr. Chief Justice 
W h i t e ;

Anderson, et al. v. Myers, et al., supra (C. C. D. 
Md. 1910), 182 Fed. 223, opinion by D. J. 
Morris;

Myers, et al. v. Anderson, et al., supra (1915), 238 
U. S. 368, 59 L. ed. 1349, opinion by Mr. Chief 
Justice W hite;

West v. Bliley, et al., supra (D. C. Va. 1929), 33 
Fed. (2d) 177, opinion by D. J. Groner; 

Bliley, et al. v. West, supra (C. C. A. 4th, 1930), 
42 Fed. (2d) 101, opinion by C. J. N o r t h c o t t ;

Nixon v. Herndon, et al. (1927), 273 U. S. 530, 
71 L. ed. 759, opinion by Mr. Justice Holmes.



B r i e f  o f  P e t i t i o n e r . 45

Point 2. This case is not within the doctrine o f the 
case o f Giles v. Harris, et al. (1 9 0 3 ) 189 U. S. 475, 47 L. 
ed. 909.

In their answer (R., p, 16), and in the courts below, 
respondents urged the patently specious argument—that 
petitioner is inconsistent in insisting upon the right to 
register under the Oklahoma Registration Law, while, at 
the same time, he is contending that the said law is uncon­
stitutional and invalid. Restated, the argument is that if 
said law is unconstitutional, as contended by petitioner, it 
has never had any legal existence and petitioner never had 
any legal right to be registered; and if petitioner did not 
have a legal right to be registered, he has no legal com­
plaint against respondents on account of the denial by them 
of registration. There are many answers to this illogical 
and sophistical contention:

First, the respondents seek thereby to play hard and 
fast, to blow hot and cold at the same time. They refuse 
to take the position that said law is either constitutional 
or unconstitutional;

Secondly, in urging said defense the respondents whol­
ly ignore the fact that under the 15th Amendment and R. 
S. 2004, as well as under Sec. 1 of Art. I l l  of the State 
Constitution, and independently of the cunning provisions 
of the state law or their amphibolous construction thereof, 
petitioner had the right to vote; and,

Finally, and conclusively, this Supreme Court of the 
United States has wholly repudiated the identical proposi­
tion. Myers, et al. v. Anderson, et al., supra (1915), 238 
U. S. 368, 59 L. ed. 1349.

Said case of Myers v. Anderson, supra, was decided 
by this court on the same day on which was rendered the 
opinion in the Guinn case, supra; and the opinion therein



is directly in point and controlling on the point here under 
discussion. Said the learned Chief Justice (238 IJ. S., at 
p. 382; 59 L. ed. at p. 1355):

“ But it is argued even although this result be 
conceded, there nevertheless was no right to recover, 
and there must be a reversal since, if the whole stat­
ute fell, all the clauses providing for suffrage fell, and 
no right to suffrage remained, and hence no depriva­
tion or abridgment of the right to vote resulted. But 
this, in a changed form of statement, advances propo­
sitions which we have held to be unsound in the Guinn 
case. The qualification of voters under the Constitu­
tion of Maryland existed and the statute which pre­
viously provided for the registration and election in 
Annapolis was unaffected by the void provisions of 
the statute which we are considering. The mere change 
in some respects of the administrative machinery by 
the new statute did not relieve the new officers of 
their duty, nor did it interpose a shield to prevent the 
operation upon them of the provisions of the Con­
stitution of the United States and the statutes passed 
in pursuance thereof. The conclusive effect of this 
view will become apparent when it is considered that 
if the argument were accepted, it would follow that 
although the 15th Amendment by its self-operative 
force, without any action of the state, changed the 
clause in the Constitution of the State of Maryland 
conferring suffrage upon ‘ every white male citizen’ 
so as to cause it to read ‘ every male citizen’, never­
theless the Aunendment was so supine, so devoid of 
effect, as to leave it open for the legislature to write 
back by statute the discriminating provision by a mere 
changed form of expression into the laws of the state, 
and for the state officers to make the result of such ac­
tion successfully operative.

“ There is a contention pressed concerning the ap­
plication o f the statute upon which the suits were based 
to the acts in question. But we think, in view of the 
nature and character of the acts, of the self-operative

46 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  P e t i t i o n e r . 47

force of the 15th Amendment, and ,of the legislation 
of Congress on the subject, that there is no ground 
for such contention/’

Moreover, it is apparent that the above specious ar­
gument of respondents emanated from a misconception or 
attempted distortion of the opinion rendered by this court 
in the case of Giles v. Harris (1903), 189 U. 8. 475, 47 L. ed. 
909, wherein the great Justice H olmes ruled that in a pro­
ceeding in equity, wherein petitioner prayed the court to 
declare the entire election law of the state to be uncon­
stitutional, the court could not so declare the law uncon­
stitutional, and at the same time enforce it by a mandatory 
decree. In the opinion in said cause Mr. Justice H olmes 
said (189 U. S., at p. 485, 47 L. ed., at p. 911):

“ On these assumptions we are not prepared to 
say that an action at law could not be maintained on 
the facts alleged in the bill. Therefore, we are not pre­
pared to say that the decree should be affirmed on the 
ground that the subject-matter is wholly beyond the 
jurisdiction of the Circuit Court. Smith v. McKay, 
161 IT. S. 355, 358, 359, 40 L. ed. 731, 16 Sup. Ct. Rep. 
490.”

Point 3. The fact that the Oklahoma Registration Law 
provided some purported judicial rem edy in the state courts 
for wrongful denial o f registration did not affect petitioner’s 
right to damages under R. S., Sec. 1979, nor impair the 
jurisdiction o f the Federal Court over this action for dam­
ages under said Federal Statute.

The above-stated proposition is so well settled and 
so well known to the bench and bar that merely to state 
it would appear redundant had not the respondents so 
earnestly urged the contrary in the courts below, and had 
not the opinion of the Circuit Court of Appeals below (R., 
p. 101), so sparse of reason or authority, seemed to accept



4 8 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

said unfounded contention of respondents as sound. Said 
erroneous position of respondents seems to be based upon 
a dictum in the opinion rendered by the Fifth Circuit Court 
of Appeals in the case of Trudeau v. Barnes (1933), 65 
Fed. (2d) 563, where it was stated:

“ We cannot say, and refuse to assume, that, if 
plaintiff had pursued the administrative remedy that 
was open to him he would not have received any re­
lief to which he was entitled. At any rate, before going 
into court to sue for damages, he was bound to ex­
haust the remdey afforded him by the Louisiana Con­
stitution. ”  Citing: First National Bank of Greeley v. 
Board, 264 U. S. 450, 68 L. ed. 784; First National 
Bank v. Geldhart (C. C. A. 5), 64 Fed. (2d) 873.

While said Trudeau-Barnes case, supra, bears a super­
ficial similarity to the Myers-Anderson case, supra, as well 
as to the instant case, a casual analysis of said Trudeau- 
Barnes opinion will reveal that it is to each of said other 
cases as antipodal as the poles. The provisions in the 
Louisiana Constitution (concerning registration) involved 
in the Trudeau-Barnes case appeared similar to the law 
involved in the Myers-Anderson case, supra, in that each 
established a literacy test for suffrage; and it appeared 
similar to the instant case because there the plaintiff, a 
Negro, soug'ht damages under R. S. Sec. 1979, just as pe­
titioner seeks herein. There, the similarity ended: it ap­
pears from the opinion in said case that there were not 
sufficient allegations of any discriminatory administration 
of the law in question in violation of the 15th Amendment, 
and, though given leave to amend to cure said defect, plain­
tiff declined so to amend his complaint. The constitutional 
provision involved in said Trudeau-Barnes case did not 
provide for any exemption to any class of electors (as was 
provided in the Grandfather Clauses of Oklahoma and



B r i e f  o f  P e t i t i o n e r . 49

Maryland or as is involved in tlie Oklahoma Registration 
Law of 1916), nor was there any attempt at classifying the 
electors; and said opinion expressly, and pointedly dis­
tinguished said Louisiana law from such other laws, in 
the following words:

That said Louisiana law was “ essentially different 
from the Grandfather Clause of the Oklahoma Consti­
tution which was held void in Guinn v. United States, 
* * * and the Maryland statute which was under con­
sideration in Myers v. Anderson, * *

Further, if the federal courts should accept the view 
that the provision by a state statute of a judicial review 
in the state court of a wrongful refusal of the exercise of 
the right of suffrage would divest the federal courts of 
jurisdiction of such a controversy, then the 15th Amend­
ment, as well as R. S. Secs. 2004, and 1979, would be mere 
nullities. Indeed, it is very rare that any state statute de­
signed to violate the 15th Amendment to the Constitution of 
the United States fails to provide some purported judicial 
remedy in the state courts in such case. Such a remedy was 
provided by the constitutional provisions under scrutiny 
in said Trudeau-Barnes case, but the federal court assumed 
jurisdiction, and proceeded to determine the validity of 
the state constitutional provisions in question. Likewise, in 
the case of Giles v. Harris, supra, by the provisions of 
the Alabama Constitution (189 U. S., at p. 484; 47 L. ed. 
at p. 911):

“ An appeal is given to the county court and su­
preme court if registration is denied.”

Yet, Mr. Justice H olmes, speaking for the Supreme Court, 
refused to decide the case on the ground that the subject- 
matter was wholly beyond the jurisdiction of the federal 
court, and said case was disposed of on its merits. The 
registration law of the State of Maryland, involved in the



Myers-Anderson case, supra, specifically provided (An­
notated Code of Maryland, Art. I ll, Sec. 27) that any per­
son aggrieved by any board of register in refusing to reg­
ister him as a qualified elector should have the right to 
an immediate state judicial hearing of the matter; yet, it 
was held that the federal court had jurisdiction, and this 
court proceeded to declare said registration law unconsti­
tutional, although it did not appear that the plaintiff there 
had availed of said state remedy. And the registration stat­
utes of the State of South Carolina, involved in the case of 
Wiley v. Sinkler (1900), 179 U. S. 58, 47 L. ed. 84, pro­
vided for a review in the state courts in such cases, and tlie 
federal courts assumed jurisdiction of an action for dam­
ages and proceeded to dispose of the case on its merits, 
although it did not appear that any resort had been had 
to such state remedy.

Moreover, the cases cited in said dictum in said 
TrudeaUr-Barnes case do not sustain the position of re­
spondents here: The First National Bank v. Board case 
(cited in Trudeau v. Barnes, supra, page 48) merely held 
that a national banking corporation, in an effort to avoid 
taxation by the state of its shares of stock, not having ap­
plied to any of the tax authorities to reduce the assess­
ment on its property or correct the alleged inequalities, 
prior to the final levy of the tax, and having paid said tax 
under protest, could not maintain an action in the federal 
court to recover such tax. And the First National Bank 
v. Geldhart case, cited in said Trudeau-Barnes opinion, 
merely held that a property owner who had already insti­
tuted, and was prosecuting, an appeal, under administra­
tive proceedings provided by a state statute, could not, 
while prosecuting such administrative appeal, prosecute in 
a federal court of equity a suit to enjoin the collection of 
taxes involved. This latter ruling was obviously sound for

50 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  P e t i t i o n e r . 51

the reasons stated in said opinion: (1) the federal action 
was premature; and (2) plaintiff had an adequate rem­
edy at law by paying the tax (after availing of the admin­
istrative remedy) under protest and seeking its recovery 
in an action at law.

True, this court denied Writ of Certiorari to review 
the opinion in said Trudeau-Bames case, but such refusal 
does not in anywise amount to judicial approval by this 
court of the views expressed in said opinion. See: Revised 
Rules of Supreme Court of United States, Rule 38; Ham­
ilton Brown Shoe Co. v. Wolfe Bros. & Co. (1916), 240 
IT. S. 251, 60 L. ed. 629.

And it may be observed that the remedy sought to be 
availed of by the petitioner here, namely, damages under 
R. S. Sec. 1979, is radically different from the purported 
remedy provided by said state statute, 0. S. 1931, Sec. 5654. 
While said state statute purports to provide for a judicial 
inquiry as to the right of an elector to be registered, it 
does not in any wise provide for damages where the elec­
tor is wrongfully refused registration. The remedies pro­
vided, respectively, by the state statute, and by R. S. Sec. 
1979, are radically different. Thus, where a plaintiff, who 
had in the state court unsuccessfully sought writ of man­
damus to compel the registration officers to register him, 
subsequently instituted action under R. S. Sec. 1979 and in 
the federal court for damages, the federal court refused 
to give any effect to the judgment in the state court, on 
plea of res judicata, for the reason, as stated by C. J. 
R o r t h c o t t  in the opinion in Bliley, et al. v. West (C. C. A. 
I, 1930), 42 Fed. (2d) 101, affirming West v. Bliley, et al. 
(D. C. Ya. 1929), 33 Fed. (2d) 177:

‘ ‘ The precise issue here involved is different from
that in the mandamus suit.”  Citing, Myers v. Interna­
tional Co. (1923), 263 U. S. 64, 68 L. ed.‘ 165.



52 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

Even where an Arkansas statute specifically provided 
for a state remedy, and provided that such remedy in the 
state courts should he exclusive to the jurisdiction of the 
federal courts, this court held that a federal court in a 
proper case had jurisdiction, even though, no effort had 
been made to avail of said state remedy. Chicot County, 
Arkansas v. Sherwood, et al. (1893), 148 TJ. S. 529, 37 L. 
ed. 546. See also: Davis v. Wallace (1922), 257 U. S. 478, 
66 L. ed. 325.

Thus, it appears that the failure of petitioner Lane to 
seek, relief in the Courts of Wagoner County, or in the Su­
preme Court of Oklahoma, is immaterial to a disposition of 
this cause by this court.

Point 4. Sec. 5654, O. S. 1931, is violative o f the 15th 
Am endm ent to the Constitution o f the United States and 
R. S., Sec. 2004, because it is here shown that its actual 
administration achieves a result interdicted by said Amend­
ment and by said Congressional Act.

No one can deny that the purposes of said 15th Amend­
ment was to secure to Negro citizens the right of suffrage, 
on equal terms with other citizens, and free from discrim­
ination by the states. West v. Bliley, et al., supra, 33 Fed. 
(2d) 177, 178, and authorities there cited; and also the au­
thorities cited under Point 1, next above. It is impossible 
to imagine a situation, achieved by the actual administra­
tion of a state law, more flagrantly violative of said Amend­
ment than that depicted by the record in this case.

It is a well established principle of constitutional 
construction that in determining the constitutionality of a 
state statute the court will consider its effect in actual 
operation, as well as its terms.



B r i e f  o f  P e t i t i o n e r . 53

—Henderson v. Mayor of New York, etc., et al. 
(1876), 92 U. S. 259, 23 L. ed. 543, opinion 
by  M r. Justice M il l e r ;

Yick Wo v. Hopkins (1886), 118 U. S. 356, 30 L. 
ed. 220, opinion by Mr. Justice M atthew s ;

Minnesota v. Barber (1890), 136 U. S. 313, 34 L. 
ed. 455, opinion by Mr. Justice Harlan;

Truax v. Raich (1915), 239 U. S. 33, 40, 60' L. ed. 
131, 135, opinion by  Mr. Justice H ughes.

To the contrary, it seems, the respondents rely upon 
the dictum of District Judge M. J. Cochran in Grainger v. 
Douglas Park, etc. (C. C. A. 6th, 1906), 148 Fed. 513 (See: 
contention of counsel, B., p. 35). It would seem super­
fluous here to attempt by argument or citation of author­
ity to prove that it takes more than a dictum by a District 
Judge to overrule the well established, and universally 
accepted doctrine of Yick Wo v. Hopkins, supra; however, 
see: Mugler v. Kansas (1887), 123 IT. S. 623, 31 L. ed. 205; 
Traux v. Corrigan (1921), 257 IT. S. 312, 324, 66 L. ed. 
254, 259; and Sioux City Bridge Company v. Dakota County, 
Nebraska (1923), 260 H. S. 441, 67 L. ed. 340.



P r o p o s i t i o n  I I I .
The said Registration Law of the State of Oklahoma, 

as made and enforced by the State, abridges the privileges 
and immunities of petitioner Lane and of other citizens of 
the United States of his color and similarly situated, and 
deny them the equal protection of the laws; said Registra­
tion Law is violative of the 14th Article of Amendment to 
the Constitution of the United States, and said issue was 
duly raised in said court; and said Honorable United States 
Circuit Court of Appeals for the Tenth Circuit erred in hold­
ing and adjudging said Registration Law to be valid and 
constitutional without in any manner passing upon said is­
sue so made under the 14th Article of Amendment to the 
Constitution of the United States.

Though it was properly assigned in the Circuit Court 
of Appeals that said registration law of Oklahoma was 
violative of the 14th Amendment (R., pp. 1, 7, 53, 80), the 
opinion of said court fails in any manner even to mention 
said issue or said amendment.

There formerly prevailed in some quarters the er­
roneous view that the 14th Amendment did not in any way 
restrain the authority of the state in regulating suffrage. 
See opinion in Co field v. Farrell, et al. (1913), 38 Okl. 608, 
at p. 613, 134 Pac. 407. At the present time, however, there 
is no doubt as to the applicability of said amendment to 
such state laws. The opinion of Mr. Justice H olmes, in 
Nixon v. Herndon, et al. (1927), 273 U. S. 536, 71 L. ed. 
759, adjudging a former Texas primary law which denied 
suffrage to Negroes, to be unconstitutional, was based ex­
clusively upon the 14th Amendment.

That the State law in question and its administration, 
as disclosed by the record and already discussed in this 
brief, are flagrantly violative of said amendment, seems too

54 X. W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  P e t i t i o n e e . 55

obvious to require further comment. When it is sought to 
apply the constitutional standard of said amendment to 
the law in question, and to the result it has produced in 
Wagoner County, the question is not whether the State of 
Oklahoma has afforded Lane and the other Negroes the 
equal protection of the laws: the serious inquiry suggested 
is, whether the state has afforded them any protection at 
all! The record herein discloses that under said Sec. 5654, 
0. S. 1931, the State of Oklahoma is, so far as the ques­
tions here involved are concerned, still applying and en­
forcing the law of 1857, in total disregard of the 14th 
Amendment; that it is giving full, positive effect to the 
Bred Scott dictum, following Atwater v. Has sett, supra, 
p. 33; and openly defying the opinion of Mr. Chief Justice 
W hite in the Guinn case, supra.

This law, by its very terms, places every burden upon 
petitioner Lane, and others situated as he was; while as 
to the electors (all whites) who voted in 1914 no require­
ment is made. Lane is given only one ten-day period within 
which to qualify under the Registration Law; he must 
answer under oath “ any question touching his qualifications 
as an elector ” . If Lane should vote without having reg­
istered according to said Registration Law, he would, un­
der Sec. 5842, Vol. I, 0. S. 1931, p. 1714, be guilty of a 
felony; and under Sec. 5844, Vol. I, 0. S. 1931, p. 1714, 
would be disfranchised for ten years. While the white 
electors, who voted in the unlawful election of 1914, would, 
under similar circumstances, be guilty of no offense at all.

Under these circumstances, the refusal of registration 
is a denial of the right of suffrage. Myers v. Anderson, 
supra, p. 44; and petitioner Lane was not required to at­
tempt to vote without being registered (and risk being con­
victed of a felony) in order to secure adjudication of his 
rights. Terrace v. Thompson (1923), 263 U. S. 197, 216,



56 I .  W .  L a n e  v .  Jess. W ilson, e t  a l .

68 L. ed. 255, 275. Moreover, Sec. 6 of Art. Ill, of Oklahoma 
Constitution (authorizing registration legislation: Vol. II, 
0. S. 1931, p. 1408, Sec. 13452, supra, p. 42) prohibits voting 
by one who is not registered; and the vote of an unregister­
ed elector is void. Munger, et al. v. Town of Watonga, et al. 
(1925), 106 Okl. 78, 233 Pam 212; see also, Sec. 5652, 0. S. 
1931 (Appendix hereto, p. 73).

Furthermore, as has been hereinbefore shown, said 
law requires petitioner Lane to register, while, in the man­
ner in which the law is administered, it has been impossible 
for him, or any other Negro (excepting 2 in more than 
20 years years, R., p. 36) to register. During all these years 
it appears that the white electors (qualified after 1916) 
were permitted freely to register, regardless of the tech­
nical provisions of Section 5654 (R., p. 74; See also, tes­
timony of respondent Marion Parks, registrar, R., p. 49, 
et seq.).

Said Sec. 5654 imposes, in effect, upon petitioner Lane 
an arbitrary period of limitation of ten days within which 
to seek  to remedy the wrongful refusal of registration. 
Those who voted in the illegal election of 1914, even though 
their votes were cast in violation of said illegal law, have 
preserved to them, conclusively, the right of suffrage, with­
out any qualification or requirement whatever.

As hereinbefore shown, under Sec. 5654, petitioner was 
purportedly allowed a limitation period of only ten days 
within which to seek to remedy any wrongful denial of reg­
istration; the registration officer so offending was entitled 
to formal summons, and was allowed ten days within which 
to answer; and said registration official had the right of ap­
peal from any possible order or decree in favor of petitioner. 
On the contrary, by Sec. 5661, Yol. I, O. S. 1931, p. 1651 (Ap­
pendix, p. 75), the county registrar is given an absolute, ar-



B r i e f  o p  P e t i t i o n e r . 57

bitrary and capricious power, upon 48 hours informal no­
tice, to strike the name of any elector from the register. The 
statute, in effect, expressly authorizes the county registrar 
to consider hearsay evidence. And there is no power, judi­
cial or administrative, on this side of Judgment Day, to 
review or question such acts of said registrar.

The actual working of this unequal, unjust, oppressive 
law is not left to speculation or imagination: here we have 
it in actual operation. Consider the actual case conducted 
by the respondent, Jess Wilson, and instigated by the re­
spondent Judge Moss, within two days after the institution 
of the instant action (R., p. 64-74). Here was John Moss, 
candidate for re-election, in actual control of the entire 
registration system in the county! He was acting as the 
legal adviser to the election officials (R., pp. 49, 48, 47); in­
structing them as to how to perform the duties of their 
respective offices (R., pp. 49, 46); and in this particular 
case instructing the county registrar as to whose names 
to strike from the register (R., p. 46). See record, page 
72, where counsel was attempting to appear before the 
County Registrar on behalf of Negroes whose names were 
to be stricken from the register:

“ Mr. John Moss: Is that all you (counsel for 
Negro electors) appear for, for that reason!

Mr. Chandler: Yes.
Mr. John Moss: Then you (the county registrar) 

might excuse all of us and hear it. ’ ’
And the county registrar, being under the complete domi­
nation of Judge Moss, did as he was ordered. By the same 
token, any corrupt candidate for public office could (or can), 
under this registration law, enter cahoots with the county 
registrar, and disfranchise, not only the Negro electors, but 
also all other electors who he knew would vote against him



58 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

—by the very terms of this law, he could disfranchise the 
opposing candidate, or even the district judges themselves, 
and there would be no definite, known proceeding under this 
law by which anyone could complain. Of course, this is not 
due process of law: it is not equal protection of the laws. 
It is, on the other hand, corrupt politics, injustice, oppres­
sion, tyranny!

This state law, and the result it has produced, are 
clearly violative of said 14th Amendment:

Slaughter-House Cases (1873), 83 U. S., 16 Wall. 
36, 21 L. ed. 394, opinion by Mr. Justice 
M il l e r ;

Strauder v. W. Va. (1880), 100 U. S. 303, 25 L. 
ed. 664, opinion by Mr. Justice Strong;

Ex parte Va. (1880), 100 U. S. 339, 25 L. ed. 676, 
opinion by  Mr. Justice S trong ;

In re: Tiburcio Parrott (C. C. D. Calif. 1880), 1 
Fed. 481, opinion b y  J. S a w y e r ;

Neal v. Delaware (1881), 103 U. S. 370, 26 L. ed. 
567, opinion by Mr. Justice H arlan ;

Yick Wo v. Hopkins (1886), 118 IT. S. 356, 30 L. 
ed. 220, opinion by Mr. Justice M atthews;

In re: Wo Lee (C. 0. D. Calif. 1886), 26 Fed. 471, 
opin ion  b y  J. Saw yer ;

Minnesota v. Barber (1890'), 136 U. S. 313, 34 
L. ed. 455, opinion by Mr. Justice H arlan ;

Buchanan v. Warley (1917), 245 H. S. 60, 62 L. 
ed. 149, opinion by Mr. Justice D a y ;

Nixon v. Herndon (1927), 273 U. S. 536, 71 L. ed. 
759, opinion b y  Mr. Justice H olmes.

From a legal and constitutional point of view, the 
abovementioned Yick Wo v. Hopkins case is squarely in 
point, and the opinion of Mr. Justice M atthew s there, is 
controlling here.



B r i e f  o f  P e t i t i o n e r . 59

P r o p o s i t i o n  IV .
It appearing that petitioner Lane was duly qualified 

as an elector under Section 1 of Article III of Oklahoma 
Constitution (Vol. II, O. S. 1931, p. 1406, Sec. 13446; Ap­
pendix hereto, p. 76), but that pursuant to said Oklahoma 
Registration Law of 1916, as enforced by respondents, said 
petitioner was forbidden to register as an elector, though 
so duly qualified, and for said reason said Registration Law 
violated said provision of said state constitution; and al­
leged error to said effect was duly assigned in the Circuit 
Court of Appeals; and said Circuit Court of Appeals erred 
in holding said Registration Law to be valid and constitu­
tional, without in any manner observing said issue so made 
under the state Constitution.

The above stated proposition raises, admittedly, a ques­
tion of state law ; but since this question arises in this cause, 
cognizable by the federal court, it is competent for the 
federal court to pass upon all questions involved, including 
state questions, where such questions have not been spe­
cifically passed upon by the Supreme Court of the State. 
Guinn v. United States, supra (1915), 238 U. S. 347, 59 L. 
ed. 1340; Davis v. Wallace, supra (1922), 257 U. S. 478, 
66 L. ed. 325. Petitioner has been unable to ascertain that 
this particular question has ever been passed upon by the 
Supreme Court of the State of Oklahoma.

This proposition is based upon the contention of pe­
titioner that the qualifications of an elector in the State of 
Oklahoma are those prescribed by Sec. 1, Article III, of 
the Oklahoma Constitution (quoted in the 2nd requested in­
struction below, R., p. 52; and quoted in Appendix to this 
brief at page 76); that said Sec. 5654, under the guise of reg­
ulating the registration of electors, is an unwarranted and 
unconstitutional (under state constitution) attempt by the



60 I. W. L ane v . Jess W ilson, e t  a l .

State Legislature to modify said constitutional require­
ments, and an actual destruction of the rights of an elector 
duly qualified under the terms of said constitutional provi­
sion.

This contention of petitioner seems sound, both in sub­
stance and upon legal principle. In this very case, although 
it is admitted (See Answer of respondent, R., p. 15) that pe­
titioner possesses all of the constitutional qualifications of 
an elector, yet, on account of the terms and enforcement of 
said Sec. 5654, said petitioner is denied any of the rights, 
privileges, or immunities of a constitutionally qualified 
elector, and is denied any means of redress for the denial of 
the exercise of the privilege, or for violation of the right. 
Thus, as to petitioner, the constitutional definition of the 
qualifications of an elector is a mere nullity. Though duly 
qualified as an elector in 1934, he was denied registration 
under Sec. 5654. Such law cannot be defended as regula­
tory: for, in fact, it is more—it is confiscatory and de­
structive.

And on the other hand, as to the exemption from reg­
istration accorded by the said Sec. 5654 to those who voted 
in 1914, said statute is equally violative of said Sec. 1, of 
Article III, of the State Constitution. Such voters (who 
voted in 1914) have an absolute and incontestable right to 
vote in any election in the state. The last sentence of said 
Sec. 5654 is: “ Provided further, that each county election 
board in this state shall furnish to each precinct election 
board in the respective counties a list of the voters who 
voted at the election in November, 1914, and such list shall 
be conclusive evidence of the right of such person to vote,” 
(Italics ours.) Thus, any person whose name may be found 
upon such list has an absolute, incontestable right today to 
vote (under Sec. 5654), though he actually possesses none 
of the qualifications prescribed by said Sec. 1, Article III



B r i e f  o f  P e t i t i o n e r . 61

of the Constitution, and though he be tainted by each of 
the attributes of persons by the Constitution expressly for­
bidden to vote.

Petitioner knows of no presumption of fairness or 
regularity of operation which the court is bound to indulge 
in favor of an unconstitutional, void law. Very probably, 
persons who were not citizens, and also felons, convicts, 
paupers, idiots and lunatics actually voted in fulsome hordes 
in 1914, under the Grandfather Clause—under the terms of 
the Grandfather Law, every felon, pauper, and idiot in the 
state could vote who could prove that he was on ‘ ‘ January 
1, 1866 * * * entitled to vote” , etc. No one can imagine 
all the wrongs and unlawful acts perpetrated under cover 
of that constitutional monstrosity known as the Grand­
father Clause. Imagination is not necessary—just read the 
sordid narration in the opinion rendered in Guinn v. United 
States (C. C. A. 8, 1915), 228 Fed. 103, for a description 
of operation of the “ state policy”  sought to be perpetuated 
by the respondents. Yet by the effect of Sec. 5654, every 
alien, felon, idiot or lunatic who voted in 1914 under the 
Grandfather Law, whether in consonance with its spirit 
or contrary to its terms, is today duly qualified to vote, 
despite the requirements of said Sec. 1 of Article III, of 
the State Constitution.

And this practical quaere suggests itself: what was the 
need or reason for the special, necromantic 1916 regis­
tration in Wagoner County, if all those (obviously white) 
who voted in 1914 were exempted from registration; and all 
those who did not vote in 1914 (obviously, black) were de­
nied registration?

The rule of law governing such a state statute is well 
settled. In Vol. 9, Ruling Case Law, commencing at page 
1036, concerning Elections, it is stated:



62 I. W. L an e v. Jess W ilson, et al.

“ Sec. 52. In General. It is a general rule that, in 
the absence of constitutional inhibition the legislature 
may adopt registration laws if they merely regulate in 
a reasonable and uniform manner how the privilege of 
voting shall be exercised. It is true that the constitu­
tion by prescribing the qualifications of those who may 
vote confers upon persons coming within the class so 
created a right to vote which cannot be abridged by 
the legislature, and, therefore, the theory upon which 
registration laws may be supported is that they do not 
impair or abridge the electors’ privilege but merely 
regulate its exercise by requiring evidence of the right. 
The fact that a constitutionally qualified voter may 
be prevented from voting through failure to comply 
with the law does not necessarily invalidate it, provided 
he be afforded a reasonable opportunity to register be­
fore the election. The requirement of registration does 
not add a new qualification, unless such voter is de­
prived of the right to prove himself to be an elector, 
or, as it has been held, is denied the right to register at 
any time prior to the closing of the polls on election 
day.”  (Citing):

State v. Corner, 22 Neb. 265, 34 N. W. 499, 3 A. 
S. R. 267;

White v. Multnomah County, 13 Ore. 317, 10 Pac. 
484, 54 Am. Rep. 843;

Dells v. Kennedy, 49 Wis. 555, 6 N. W. 246, 381, 
35 Am. Rep. 786;

Notes: 7 L. R. A. 99; Ann. Cas. 1913B 25.
* * * * * * *
“ Sec. 53. Essentials of a valid Registration Law. 

A registration law will not be held valid which under 
the color of regulating the manner of voting, really 
subverts the right, for a law of this description must 
be reasonable, uniform and impartial, and must be 
calculated to facilitate and secure, rather than impede, 
the exercise of the right. If, for instance, it prescribes 
a qualification for the elector in addition to those pro-



B rief of P etitioner. 63

vided by the constitution, or prescribes regulations so 
unreasonable and restrictive as to exclude a large num­
ber of legal voters from exercising their franchise, it 
will be declared invalid.”  Citing: Brewer v. McClel­
land, 144 Ind. 423, 32 N. E. 299, 17 L. R. A. 845; Ed- 
m.onds v. Banbury, 28 la. 267, 4 Am. Rep. 177; Owens­
boro v. Hickman, 90 Ky. 629, 14 S. W. 688, 10 L. R. A. 
224; Capen v. Foster, 12 Pick. (Mass.) 845, 23 Am. 
Dec. 632 and note (cited by Mr. Justice M a t t h e w s  in 
Yick Wo-Hopkins, supra); Atty. General v. Detroit, 
78 Mich. 545, 44 N. W. 388, 18 A. S. R. 458, 7 L. R. A. 
99; State v. Corner, 22 Neb. 265, 34 N. W. 499, 3 A. S. 
R. 267; State v. Board, etc., 21 Nev. 67, 24 Pac. 614, 
9 L. R. A. 385; Daggett v. Hudson, 43 Ohio 548, 3 N. 
E. 538, 54 Am. Rep. 832 (cited by Mr. Justice M a t ­
t h e w s  in opinion in Yick Wo-Hopkins, supra); Page 
v. Allen, 58 Pa. St. 338, 98 Am. Dec. 272; Notes: 28 
A. S. R. 260, Ann. Cas. 1913B, 19, et seq.

* * * * * * *

“ Sec. 54. Registration Laws Under C onstitutional 
Provisions. * * * Where the constitution directs that 
the legislature shall provide for the registration of 
all persons entitled to vote, the mandate is an implied 
prohibition against providing for the registration of 
any class or for only a part of the voters. The quali­
fications of voters must be uniform. One voter must 
possess the same as another and he need possess no 
more. And even without such provision it seems clear 
that a registration law in order to be valid must be 
uniform in its operation. Hence, a law which requires 
one person to be registered in order to be entitled to 
vote, while it permits another person to vote without 
being registered, is void.”  (Morris v. Powell, 125 Ind. 
281, 25 N. E. 221, 92 L. R. A. 326.)

* * * * * * *

“ The fact that the legislature is expressly au­
thorized to enact registration laws does not affect the 
rule heretofore laid down that such a law shall not



64 I. W. L ane. v. Jess W ilson, e t  a l .

under pretense of regulation preclude or hinder any 
one from the exercise of his right of franchise.”  Cit­
ing: Pope v. Williams, 98 Md. 59, 56 Atl. 543, 103 A. 
S. R. 379, 66 L. R. A. 398; People v. Canady, 73 N. C. 
198, 21 Am. Rep. 465.”

The third syllabus of the above cited case of A tty. Gen. 
v. City of Detroit (1889), 78 Mich. 545, 44 N. W. 388, is 
as follows:

‘ ‘ The act is unreasonable and void because it pro­
vides for but five registration days during the year, 
at one of which the elector must make personal appli­
cation for registration; thus disfranchising persons 
who are ill or absent on registration days, but who 
would be able to vote on election days. ’ ’

In said Michigan case the registration law was declared to 
be void because it provided for only five registration days 
during the entire year. A fortiori, this Oklahoma statute, 
which provides for only one ten-day registration period dur­
ing the entire lifetime of the elector (and that, in 1916), is 
unreasonable and void.

The third syllabus of the case of McCafferty v. Guyer, 
et al. (1868), 59 Pa. St. 109, is in the following words:

‘ ‘ The 3rd Article of the Constitution is not merely 
a general provision defining the indispensable requi­
sites to the rights of an elector, leaving the legislature 
to determine who may be excluded. It is a description 
of who shall not be excluded.

‘ ‘ The Act of June 4th, 1866 [for disfranchising 
deserters] is unconstitutional.”

And in the case of Monroe, et al. v. Collins (1866), 17 
Ohio St. 665, opinion b y  Justice W elch , the law is stated 
in the second syllabus, thus:

“ The legislature have no power, directly or indi­
rectly, to deny or abridge the constitutional right of



B rief of P etitioner. 65

citizens to vote, or unnecessarily to impede its exer­
cise; and laws passed professedly to regulate its ex­
ercise or prevent its abuse must be reasonable, uni­
form, and impartial.”

This last cited case, to-wit, Monroe v. Collins, quoted from 
above, is especially siguificant here because in said case 
the Legislature of the State of Ohio, even before the adop­
tion of the 14th and 15th Amendments to the Constitution of 
the United States, attempted, by a registration law, to deny 
to Negroes the right of suffrage; and said case is entitled 
to very serious consideration because it was cited, with 
pointed approval, by Mr. Justice M atthew s, speaking for 
the Supreme Court of the United States, in the case of 
Yick Wo v. Hopkins (1886), 118 U. S. 356, 30 L. ed. 220.

Concerning the specific question as to the constitution­
ality of such a registration law as is here under judicial 
scrutiny, the law is stated by Cooley’s Constitutional Limi­
tations, 8th Edition, 1927, Vol. 2, at p. 1370:

“ All regulations of the elective franchise, how­
ever, must be reasonable, uniform, and impartial; they 
must not have for their purpose directly or indirectly 
to deny or abridge the constitutional right of citizens 
to vote, or unnecessarily to impede its exercise; if 
they do, they must be declared void.”  Citing: Capen 
v. Foster, 12 Pick. 485, 23 Am. Dec. 632; Monroe v. 
Collins, 17 Oh. St. 665; Kineen v. Wells (Sup. Jud. Ct. 
of Mass. 1887), 144 Mass. 497, 11 N. E. 916, and other 
cases.

In the above cited case of Kineen v. Wells, et al., relied 
upon by Mr. Cooley, there was held to be unconstitutional 
and void a registration statute of the State of Massachu­
setts which provided that “ no person hereafter naturalized 
m any court shall be entitled to be registered as a voter 
within thirty days of such naturalization,”  In said case,



an order of the trial court sustaining demurrer to a petition 
for damages against registration officers for enforcing said 
statutes as against a newly naturalized citizen, was reversed 
for the reason, as stated by Justice D e v e n s , such registra­
tion law was in conflict with the right of an elector, duly 
qualified under the Constitution of the State of Massachu­
setts.

The above stated proposition was properly assigned, 
specified, and presented to the Circuit Court of Appeals 
below, but the opinion of said court wholly ignored same.

P r o p o s i t i o n  Y .

Upon the trial there was adduced abundant evidence 
of a conspiracy between and among the respondents, act­
ing pursuant to said state laws, in the deprivation from pe­
titioner of his rights under the Constitution and laws of the 
United States; and said Circuit Court of Appeals committed 
error in holding and adjudging that there was no conspir­
acy, said question being properly determinable by a jury, 
and not by the court; and in so doing the Circuit Court of 
Appeals violated the 7th Amendment.

In the trial court, this case was tried to a jury, where a 
verdict was instructed in favor of respondents (R., p. 61). 
There was abundant evidence to prove, nor was it contro­
verted, that petitioner Lane possessed all the qualifications 
of an elector as prescribed by Sec. 1, Art. I ll, of the Okla­
homa Constitution. It is not controverted that petitioner 
made application for registration, at the proper time, and 
that he was refused registration. There was, further, evi­
dence to the effect that said refusal was on account of 
his race and color (R., p. 29). It is admitted that, in deny­
ing petitioner registration, respondents were enforcing, 
and acting under color of the state statutes the constitu­
tionality of which is at issue.

6$ I. W. L ane. v. Jess W ilson, et al.



B rief of P etitionee. 67

It was charged in the petition filed in the trial court 
that in refusing registration to petitioner and to other Ne­
groes the respondents were acting pursuant to a conspiracy 
(R., p. 5). During trial there was introduced evidence to 
prove: that during the registration period of 1916, the 
special registration provided the registration law, there 
were registered in Wagoner County 11 Negro electors; that 
during the next ten years not a single Negro elector was 
registered in said county; that in each of 1926 and 1928 
there was registered 1 Negro; that from 1928 down to 
1934 there was not a single Negro registered in said county 
(R., p. 36). It further appeared, and was not controverted, 
that approximately 30 percent of the population of the 
county were Negroes (R., p. 38). It was further proved that 
petitioner Lane had voted in Alabama, and in Oklahoma 
in 1910 and 1912, but that he could not vote in 1914 on ac­
count of the Grandfather Clause, and that he had never 
been able to register, although he had tried to register dur­
ing every registration period since 1914 (R., p. 27-28).

While, in this controversy, the identity of the precinct 
registrar in 1916 appeared immaterial, the opinion of the 
Circuit Court of Appeals recited that it seemed to be “ con­
clusively established by proof that one Workman was not 
precinct registrar in 1916”  (R., p. 100). There was con­
flicting evidence as to the identity of the precinct registrar 
in 1916, and the question before the trial court, as well as 
the Circuit Court of Appeals, was not whether said Work­
man was the precinct registrar, but whether there was evi­
dence to submit to the jury as to who was such registrar.

In the manner in which registrations are conducted in 
said county, it seems quite difficult, if not impossible, to 
determine just who is the registrar—from the evidence it 
appeared quite clearly that the precinct registrars made 
a general game of “ hide-and-go-seek”  with Negro electors



68 I .  W .  L a n e  v .  Jess W ilson, et a l .

seeking registration; and this appears, not only from evi­
dence of petitioner, but also from evidence of respondents. 
Their witness Atterberry testified that he was registrar 
for part of a registration period, and that the registration 
books were sent to him, bnt that he refused to serve (R., p. 
43).

The respondent, Jess Wilson, county registrar, tes­
tified that he had appointed one Carl Lawrence, who had 
resigned; and that during part of the registration period 
of 1934 there was no precinct registrar (R., p. 45). Wilson 
advised petitioner Lane that the precinct registrar would 
be one Benny Harman, but said Wilson, county registrar, 
actually appointed respondent Parks as precinct registrar 
(R., p. 45).

Respondent Wilson testified that he appointed one 
Goddard as precinct registrar, said appointment being 
“ just by oral agreement”  (R., p. 46). There was not in­
troduced in evidence any authentic record to identify any 
precinct registrar at any time—it seems that no such record 
existed. Under these circumstances, the mere fact that 
James L. Pace issued some registration certificates during 
1916 is by no means conclusive—as the Circuit Court of 
Appeals held—that Workman, to whom petitioner applied, 
as he testified, was not precinct registrar during any part 
of said period. At best, it was a question of fact for the 
jury.

The opinion of the Circuit Court of Appeals to effect 
that there was no proof of a conspiracy seems to be pat­
ently erroneous: there was evidence that respondent Parks 
stated to petitioner that Judge Moss and Jess Wilson had 
instructed him not to register colored people (R., p- 33); 
respondent Wilson testified that he advised Parks that re­
spondent Moss would instruct him regarding the election



B rief op P etitioner. 69

laws (R., p. 46); respondent John Moss admitted instruct­
ing Parks about the registration law; and reading to Parks, 
as a statement of the law, a certain letter he had received 
which construed the law as contended by respondents (R., 
p. 48). After the precinct registrar Goddard had registered 
50 Negroes, respondent Judge John Moss was one of the 
petitioners to have the names of said Negro electors strick­
en from the record (R., p. 64-65); and when said matter 
came on for hearing before the county registrar, respondent 
Wilson, sitting as a supreme judge and from whose edict 
there was no appeal, it was clear that Wilson was acting 
under instructions from Judge John Moss; and at the sug­
gestion of Moss, Wilson excluded from the hearing counsel 
attempting to represent said Negro electors whose names 
were to be stricken (R., p. 72). At that very time Moss 
was a candidate for public office! There was abundant evi­
dence of a conspiracy—surely enough to be submitted 
to a jury.

The opinion of the Circuit Court of Appeals recited, 
“ There was proof that but few Negroes were registered in 
proportion to their population, but no proof of the number 
of qualified electors who applied and were refused”  (R., 
p. 100). There was abundant proof that all who applied 
were refused; and there was further proof that all 50 
names of those who were registered in 1934 were stricken 
from the register, and in an inquisitorial proceeding which 
was a disgrace to the state. Furthermore, it was sufficient 
for petitioner to prove that he was duly qualified and il­
legally denied the right to register. State of Missouri, ex rel. 
Gaines v. Canada, etc., et al. (Dec. 12,1938, No. 57), . . .  U. S. 
• L. ed. . . .

In disposing of said cause, the Circuit Court of Ap­
peals undertook to determine the ultimate facts from con­
flicting evidence, and in so doing said court violated the 
7th Amendment to the Constitution of the United States,



70 I. W. L ane v. Jess W ilson, et al.

which guarantees the right to trial by jury; and the opinion 
and judgment of said Circuit Court of Appeals, usurping 
the function of jury, was erroneous.

—Slocum v. N. Y. Life Insurance Co. (1912), 228 
U. S. 364, 57 L. ed. 879, at p. 887.

C O N C L U S I O N .

Finally, it appears that in this cause the United States 
Circuit Court of Appeals for the Tenth Circuit has failed to 
observe Article VI of the Federal Constitution; it has usurp­
ed the function of jury and violated the Seventh Amend­
ment ; refused to consider the 14th Amendment; approved 
the flagrant violation of the 15th Amendment; and has ig­
nored the applicable, controlling decisions of this Honorable 
Court. Further, that its judgment is erroneous, unjust and 
contrary to law.

Wherefore, petitioner respectfully prays that the said 
judgment of said Circuit Court of Appeals herein be re­
versed; and that this Honorable Court cause justice to be 
done between the parties according to law.

Respectfully submitted this 20th day of January, A.
D. 1939.

I. W. L ane,
Petitioner,

By Charles A. Chandler,,
His Counsel.



B rief of P etitioner. 71

APPENDIX.
ARTICLE VI, UNITED STATES CONSTITUTION (Vol. 

II, 0. S. 1931, p. 1608):
“ Article VI.

* * * * * * *

‘ ‘ This Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof; and all Treaties 
made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the Land; and 
the Judges in every State shall be bound thereby, any Thing 
in the Constitution or Laws of any State to the Contrary 
notwithstanding.

*  *  *  *  *  *  *  > >

7TH AMENDMENT, UNITED STATES CONSTITU­
TION (Vol. II, 0. S. 1931, p, 1611):
“ In suits at Common law, where the value in contro­

versy shall exceed twenty dollars, the right of trial by jury 
shall be preserved, and no fact tried by a jury, shall be 
otherwise re-examined in any Court of the United States, 
than according to the rules of the common law. ’ ’

FOURTEENTH AMENDMENT TO CONSTITUTION
OF UNITED STATES (Vol. II, 0. S. 1931, p. 1613):
“ Section 1. All persons born or naturalized in the 

United States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State wherein they 
reside. No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the Unit­
ed States, nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny 
to any person within its jurisdiction the equal protection 
°f the laws.

* * * * * * *

“ Section 5. The Congress shall have power to enforce 
by appropriate legislation, the provisions of this article.”



FIFTEENTH AMENDMENT TO CONSTITUTION OF 
UNITED STATES (Vol. II, 0. S. 1931, p. 1614):
‘ ‘ Section 1. The right of citizens of the United States 

to vote shall not be denied or abridged by the United States 
or by any State on account of race, color, or previous con­
dition of servitude.

“ Section 2. The Congress shall have power to enforce 
this Article by appropriate legislation.”

72 I .  W .  L a n e . v .  J e s s  W i l s o n ,  e t  a l .

UNITED STATES CODE, TITLE 8—CHAPTER 2—
ELECTIVE FRANCHISE.
“ 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, Territory, district, county, city, 
parish, township, school district, municipality, or other ter­
ritorial subdivision, 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 Territory, or by or 
under its authority, to the contrary notwithstanding.”  (R. 
S., Sec. 2004).

UNITED STATES CODE, TITLE 8—CHAPTER 3 -
CIVIL RIGHTS.
“ Section 43. Civil Action for Deprivation of Rights. 

Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, 
subjects, or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction thereof to the 
deprivation of any rights, privileges, or immunities secured 
by the Constitution and laws, shall be liable to the party 
injured in an action at law, suit in equity, or other proper 
proceeding for redress.”  (R. S., Sec. 1979).

Title 28, U. S. C., Sec. 41 (Mason Code, Vol. 2, p. 1972):
’ ’Section 41. Judicial Code, Section 24, Amended.) 

Original Juricdiction, — The district courts shall have or­
iginal jurisdiction as follows:



B r i e f  o f  P e t i t i o n e r . 73

“ (1) United States as plaintiff; civil suits at common 
law or in equity.—First. Of all suits of a civil nature, at 
common law or in equity, * * * or, where the matter in con­
troversy 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, * * *. The foregoing provision 
as to the sum or value of the matter in controversy shall 
not he construed to apply to any of the cases mentioned in 
the succeeding paragraphs of this section. (R. S. Secs. 563, 
629; Mar. 3, 1875, c. 137, Sec. 1, 18 Stat. 470; Mar. 3, 1887, 
c. 373, Sec. 1, 24 Stat. 552; Aug. 13, 1888, c. 866, Sec. 1, 
25 Stat. 433; Mar. 3, 1911, c. 231, Sec. 24. 36 Stat. 1091.)”

Title 28, U. S. C., Sec. 41, Subdivision (14) (Vol. 2, Mason,
p. 1991, defining jurisdiction of District Courts):

“ (14) Suits to redress derprivation of civil rights.— 
Fourteenth. Of all suits at law or in equity authorized by 
law to be brought by any person to redress the depriva­
tion, under color of any law, statute, ordinance, regulation, 
custom, or usage, of any State, of any right, privilege, or 
immunity, secured by the Constitution of the 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. 
(R. S., Sec. 563, par. 12, Sec. 629, par. 16; Mar. 3, 1911, 
c. 231, Sec. 24, par. 14, 36 Stat. 1092.) ”

(Vol. I, O. S. 1931, p. 1646, Sec. 5652) Registration Man­
datory.
“ It shall be the duty of every qualified elector in this 

state to register as an elector under the provisions of this 
Act, and no elector shall be permitted to vote at any elec­
tion unless he shall register as herein provided, and no 
elector shall be permitted to vote in any primary election 
of any political party except of the political party of which 
his registration certificate shows him to be a member.”

(i ol. I, O. S. 1931, p. 1646, Sec. 5654) Time for Registra­
tion—Absentees—Appeals.



“ It sliall be the duty of the precinct registrar to reg­
ister each qualified elector of his election precinct who 
makes application between the thirtieth day of April, 1916, 
and the eleventh day of May, 1916, and such person apply­
ing shall at the time he applies to register be a qualified 
elector in such precinct and he shall comply with the pro­
visions of this act, and it shall be the duty of every quali­
fied elector to register within such time; provided, if any 
elector should be absent from the county of his _ residence 
during such period of time, or is prevented by sickness or 
unavoidable misfortune from registering with the precinct 
registrar within such time, he may register with such pre­
cinct registrar at any time after the tenth day of May, 1916, 
up to and including the thirtieth day of June, 1916, but the 
precinct registrar shall register no person under this pro­
vision unless he be satisfied that such person was absent 
from the county or was prevented from registering by sick­
ness or unavoidable misfortune, as hereinbefore provided. 
And provided that it shall be the mandatory duty of every 
precinct registrar to issue registration certificates to every 
qualified elector who voted at the general election held in 
this state on the first Tuesday after the first Monday in No­
vember, 1914, without the application of said elector for 
registration, and, to deliver such certificate to such elector 
if he is still a qualified elector in such precinct and the 
failure to so register such elector who voted in such elec­
tion held in November, 1914, shall not preclude or prevent 
such elector from voting in any election in this state; and 
provided further, that wherever any elector is refused reg­
istration by any registration officer such action may be re­
viewed 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, whereupon summons shall be issued to said 
registrar requiring him to answer within ten days, and 
the district court shall be a 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; and 
provided further, that the provisions of this act shall not 
apply to any school district elections. Provided further, 
that each county election board in this state shall furnish 
to each precinct election board in the respective counties a 
list of the voters who voted at the election in November,

74 I. W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  P e t i t i o n e r . 75

1914, and such list shall be conclusive evidence of the right 
of such person to vote.”

(Vol. I, 0. S. 1931, p. 1651, Sec. 5661) Illegal Registration—-
Cancellation—Procedure:
“ If two or more electors of any county have reason 

to believe that a name appearing upon the county registra­
tion book is illegally registered, they may apply in writing 
to the county registrar of such county to have such name 
stricken from the county registration book. Such applica­
tions shall not be made later than the Tuesday preceding 
any election, and shall be accompanied by an affidavit signed 
by one or more of such electors, setting forth their reason 
for believing that such name is illegally registered. Said 
county registrar shall forthwith consider said application 
and, if he shall determine from said affidavit or other evi­
dence that there is reasonable ground for believing that 
such name is illegally registered, he shall forthwith cause 
notice of such application to be served upon the person, 
the registration of whose name is attacked, which service 
shall be made by serving a copy of the notice on said per­
son, or if he be not found, then by leaving a copy thereof 
at the place which appears from the registration book to 
be his residence. Said notice shall briefly state the sub­
stance of the said application and shall order such person 
to appear before the county registrar in the court house 
of said county at an hour to be named therein which shall 
be at least 48 hours after the service of such notice. Re­
turn of the service of said notice by the sheriff shall be 
made within 48 hours. At the hour named for the appear­
ance of such person the said county registrar shall proceed 
to investigate whether or not such name is illegally regis­
tered. Witnesses may be summoned in the usual way to 
testify in regard thereto, and may be sworn by said county 
registrar. If the county registrar shall find that said name 
js illegally or falsely registered he shall order such name 
;°„ )e stricken from the county registration book and so cer- 
Wv to the county clerk, and it shall be the duty of the county 
! erk uP°n the receipt of said certificate to strike said name 
I'om tlm county registration book and certify to the pre- 

cmct registrar of the precinct in which such name was re-



S U P R E M E  C O U R T  O F  T H E  U N I T E D  S T A T E S

No. 4 6 0 -----  O c t o b e r  Term ,1938

I .  W. Lane, P e t i t i o n e r ,  
vs .

Jess  Wilson, John Moss and 

Marion Parks.

) On Writ o f  C e r t i o r a r i  to 
) the United States  C ir cu it  
) Court o f  Appeals f o r  the
) Tenth C ir cu it  Court.)

(May 22, 1939}

Mr. Ju st ice  FRANKFURTER d e l iv e r e d  the opinion o f  the Court.

The case i s  here on c e r t i o r a r i  to r e v i e #  the judgment o f  the C ir cu i t  
Court o f  Appeals f o r  the Tenth C ir cu i t  a f f irm ing  t h a t  o f  the United 
S ta tes  D i s t r i c t  Court f o r  the Eastern D i s t r i c t  o f  Oklahoma, entered  
upon a d i r e c t e d  v e r d i c t  in fa vor  o f  the  defendants.  The a c t i o n  was 
one f o r  $5,000 damages brought under Section 1979 o f  the Revised 
Statutes  (8 U.S.C. §43),  by a c o lo r e d  c i t i z e n  c la im in g  d isc r im ina tory  
treatment r e s u l t i n g  from e l e c t o r a l  l e g i s l a t i o n  o f  Oklahoma, in  
v i o l a t i o n  o f  the F i f teen th  Amendment. C e r t io r a r i  was granted,
306 U .S .-----, because o f  the importance o f  the question  and an a s s e r t ­
ed c o n f l i c t  with the d e c is io n  in Guinn v. United S ta tes ,  238 U. S. 
347. -----------------------------------------

The c o n s t i tu t i o n  under which Oklahoma was admitted 
in to  the Union regula ted  the su f f ra ge  by A r t i c l e  I I I ,  whereby i t s  
" q u a l i f i e d  e l e c t o r s "  were to  be " c i t i z e n s  cf the S ta te .  . . who are 
over  the age o f  twenty-one years"  with d i s q u a l i f i c a t i o n s  in the case 
o f  f e l o n s ,  paupers and lu n a t i c s .  Soon a f t e r  i t s  admission the 
su f frage  p ro v is io n s  o f  the Oklahoma Const i tu t ion  were r a d i c a l l y  
amended by the a d d it io n  o f  a l i t e r a c y  t es t  from which white v o ters  
were in e f f e c t  r e l i e v e d  through the operat ion  o f  a "grandfather 
c l a u s e . "  The c lause was s tr icken  down by th is  Court as v i o l a t i v e  
o f  the  p r o h i b i t i o n  against  d i sc r im in a t ion  "on account o f  race, c o l o r  
or previous  cond it ion  o f  serv itude"  o f  the F i f t e e n th  Amendment.
This outlawry occurred  on June 21, 1915. In the meantime the 
Oklahoma genera l  e l e c t i o n  o f  1914 had been based on the o f fend ing  
"grandfather  c la u s e . "  A f te r  the in v a l id a t io n  o f  that clause a 
s p e c ia l  sess ion  o f  the Oklahoma l e g i s l a t u r e  ena.cted a new scheme 
f o r  r e g i s t r a t i o n  as a p r e r e q u i s i t e  to v o t in g .  Oklahoma Laws o f  
1916, Act o f  February 26, 1916, c.  24. Section 4 o f  t h i s  s tatute  
(now Section 5654, Oklahoma Statutes  1931, 26 Okla. St. Ann. 7 4 )1 
was obv ious ly  d i r e c t e d  towards the consequences o f  the d e c i s i o n  in 
Guinn v. United States ,  supra. Those who lad voted  in the general l-

l - 71 I t  shall  be the duty o f  the p r e c i n c t  r e g i s t r a r  to  r e g i s t e r  each 
q u a l i f i e d  e l e c t o r  o f  h i s  e l e c t i o n  p r e c in c t  who makes a p p l i ca t io n  
between the t h i r t i e t h  day o f  A p r i l ,  1916, and the e leventh  day o f  
May,1916, and such person applying sha l l  at the time he a p p l i e s  to 
r e g i s t e r  be a q u a l i f i e d  e l e c t o r  in such p r e c i n c t  and he s h a l l  comply  
with the p r o v is io n s  o f  t h i s  a c t ,  and i t  shall  be the d u ty  o f  e v e r y  
q u a l i f i e d  e l e c t o r  to r e g i s t e r  within such time; prov id ed ,  i f  any 
e l e c t o r  should be absent from the county o f  h i s  r e s id e n c e  during 
such p e r io d  o f  time, or i s  prevented by s ickness or unavoidable  
misfortune from r e g i s t e r i n g 'w i t h  the p r e c in c t  r e g i s t r a r  within such 
time, he may r e g i s t e r  w ith  such p r e c in c t  r e g i s t r a r  at any time a f t e r  
the tenth day o f  May, 1916, up to and inc lud ing  the t h i r t i e t h  day o f  
June ,1916, but the p r e c in c t  r e g i s t r a r  sha l l  r e g i s t e r  no person 
under th is  p r o v i s i o n  unless  he be s a t i s f i e d  that such p erson was 
absent from the county or was prevented from r e g i s t e r i n g  by s ickness  
or unavoidable  m isfortune,  as here inbefore  prov id ed .  And p ro v id e d  
that i t  sh a l l  be the mandatory duty o f  every p r e c in c t  r e g i s t r a r  to 
issue  r e g i s t r a t i o n  c e r t i f i c a t e s  to every q u a l i f i e d  e l e c t o r  who vote, ,  
at the general e l e c t i o n  he ld  in th is  state  on the f i r s t  Tuesday a f t e r  
the f i r s t  Monday in November, 1914, without the a p p l i ca t ion  o f  sal 
e l e c t o r  f o r  r e g i s t r a t i o n ,a n d ,  to d e l i v e r  such c e r t i f i c a t e  to sued 
e l e c t o r  i f  he i s  s t i l l  a q u a l i f i e d  e l e c t o r  in such p re c in c t  and the 
f a i l u r e  to so r e g i s t e r  such e l e c t o r  who voted in such election neia 
in  November, 1914, shall  not prec lude  or prevent such e l o c t o r  f  ■ ... 
v o t in g  in any e l e c t i o n  in t h i s  s ta te ;  and provided further ,  tha



automa.tica.XXy rem ained  q u a l i f i e d
R e q u i r e m e n t s  a f f e c t e d  o n ly  o t h e r s .  These

f o r  
f l e d  at
those 
o r .  .
in nr.

v o t e r s .  The new 
had t o  a p p ly  

,y 1 1 , 1 9 1 6 ,  i f  q u a l i -  
3 0 , 1 9 1 6 ,  g iv e n  o n l y  t o

"a b se n t  from t h e  c o u n t y .  . . d u r in g  such p e r i o d  o f  t im e ,  
. p r e v e n t e d  by s i c k n e s s  o r  u n a v o i d a b l e  m i s f o r u n e  from r e g i s t e r -  

. w i t h i n  such  t i m e " .  The c r u x  o f  the p r e s e n t  c o n t r o v e r s y  i s

r a S i r e s l s t r a t i o n  between A p r i l  3 0 ,1 9 1 6  and M
w ith  an e x t e n s i o n  t o  Junet h a t  t im e ,

the v a l i d i t y  o f  th is  r e g i s t r a t i o n  scheme, with i t s  d iv id in g  l i n e  
between white c i t i z e n s  who had v o ted  under the "grandfather c lause"  
immunity p r i o r  to G-ulnn v. United States ,  supra, and c i t i z e n s  who 
were outs ide  i t ,  and the not more than 12 days as the normal p e r i o d  
o f  r e g i s t r a t i o n  f o r  the th e r e to fo re  p r o s c r ib e d  c l a s s .

The p e t i t i o n e r ,  a c o lo r e d  c i t i z e n  o f  Oklahoma, who was 
the p l a i n t i f f  below and w i l l  h e r e a f t e r  be r e f e r r e d  to as such, sued 
three county e l e c t i o n  o f f i c i a l s  f o r  d e c l in in g  to r e g i s t e r  him on 
October 17,1934.  He was q u a l i f i e d  f o r  r e g i s t r a t i o n  in 1916 but d id  +’ 
not  then get on the r e g i s t r a t i o n  l i s t .  The evidence i s  in c o n f l i c t  
whether he presented  h im s e l f  in that year f o r  r e g i s t r a t i o n  and, i f  
so ,  under what circumstances r e g i s t r a t i o n  was denied him. The fa c t  
i s  that p l a i n t i f f  did not  get on the r e g i s t e r  in 1916. Under the term 
o f  the s ta tu te  he thereby permanently l o s t  the r i g h t  to  r e g i s t e r  and 
hence the r ig h t  to v o t e .  The cen tra l  claim o f  p l a i n t i f f  i s ' t h a t  o f  
the u n c o n s t i t u t i o n a l i t y  o f  Sect ion  5654. The defendants jo in e d  
issue  on t h i s  claim and f u r t h e r  i n s i s t e d  that i f  there had been i l ­
l e g a l i t y  in a denial  o f  the p l a i n t i f f ' s  r ig h t  to  r e g i s t r a t i o n ,  h is  
proper  recourse  was to the courts  o f  Oklahoma. The D i s t r i c t  Court 
took the case from the jury and i t s  a c t ion  was a f f irm ed  by the 
C ir cu i t  Court o f  Appeals. I t  found no p roo f  o f  d iscr im ina t ion  against 
Negroes in the administration  o f  S ect ion  5654 and den ied  that the 
l e g i s l a t i o n  was in  c o n f l i c t  w ith  the F i f t e e n th  Amendment/ 98 F . (2 d )  
980.

The defendants urge two bars  to the p l a i n t i f f ' s  recovery  
apart from the c o n s t i t u t i o n a l  v a l i d i t y  o f  Sect ion  5684. They say that 
on the p l a i n t i f f ' s  own assumption o f  i t s  i n v a l i d i t y ,  there i s  no 
Oklahoma statute  under which he could r e g i s t e r  and there fore  no r ig h t  
to  r e g i s t r a t i o n  has been denied.  Secondly ,  they argue that the state 
procedure f o r  determining c laims o f  d iscr im ina t ion  must be employed 
b e fo re  invoking the f e d e r a l  j u d i c ia r y .  These con tent ions  w i l l  be 
cons idered  f i r s t ,  f o r  the d i s p o s i t i o n  o f  a c o n s t i t u t i o n a l  question  
must be r e s e r v e d  to the l a s t .

The f i r s t  o b je c t i o n  der ives  from a m isa p p l ica t io n  o f  
G i le s  v. H arr is ,  189 U.S. 475. In that case a b i l l  in equity  was 
brought by a c o lo r e d  man on beh a l f  o f  h im se lf  "and on beh a l f  o f  more 
than f i v e  thousand Negroes, c i t i z e n s  o f  the county o f  Montgomery, 
Alabama, s im i la r ly  s i tu a te d "  which in e f f e c t  asked the federa l  
court  " to  supervise  the v o t i n g  in that State by o f f i c e r s  o f  the 
c o u r t . "  What t h i s  Court c a l l e d  a "new and extra ord ina ry  s i tu a t io n "  
was found " s t r ik in g ly ? ;  to r e in fo r c e  "the argument that  equ ity  cannot 
undertake now, any more than i t  has in the p a s t ,  to enforce  p o l i t i c a l  
r i g h t s " .  See 189 U.S, at 487. Apart from th is  t r a d i t i o n a l  r e ­
s t r i c t i o n  upon the e x e r c i s e  o f  equ itab le  j u r i s d i c t i o n  there was 
another d i f f i c u l t y  in G i les  v.  H arr is .  The p l a i n t i f f  there was in 
e f f e c t  a.sking f o r  s p e c i f i c  performance o f  h is  r ig h t  under Alabama 
e l e c t o r a l  l e g i s l a t i o n .  This presupposed the v a l i d i t y  o f  the 
l e g i s l a t i o n  under which he was c la iming.  But the whole theory o f  h is

(1 )  continued 
wherever any e l e c t o r  i s  
o f f i c e r  such a c t ion  may 
county by the a g gr ieved  
p e t i t i o n  with the Clerk 
is su ed  to said r e g i s t r a r  requ ir ing

r e g i s t r a t i o nre fu sed  r e g i s t r a t i o n  by any 
be reviewed by the d i s t r i c t  court  o f  the 
e l e c t o r  by h i s  f i l i n g  within ten days a 
o f  said court ,  whereupon summons shall  'be 

him to answer within ten days,
and the d i s t r i c t  court  sh a l l  be a exped it ious  hearing and from his  
Judgment an appeal w i l l  l i e  at the instance o f  e i t h e r  party to the 
Supreme Court o f  the State as in c i v i l  cases ;  and provided fu rther ,
that the p r o v is i o n s  
d i s t r i c t  e l e c t i o n s ,  
in t h i s  state shall  
r e sp e c t iv e  count ies  
in November, 1914,

o f  t h i s  act  sha l l  not ap p ly  to any school 
Prov ided  fu r th er ,  that  each county e l e c t i o n  board 
fu rn ish  to  each p r e c in c t  e l e c t i o n  board in the 
a l i s t  o f  the v o t e r s  who voted at the e l e c t i o n  

and such l i s t  sh a l l  be conclusive  evidence o f  the
U . S . 2 0 0 ; Waltonv .House  o f  R e p . , 265 U.S.r ig h t  o f  such person to vots

2 . See a l s o ,  In re Sawyer, U . -------------_ „  , « a ro1nst487 ; 4 P o m e r o y ,E q u i t y  01743 e t  seq . ;P o u n d ,E q u i t a b l e  R e l i e f  A g a i n s t
Defam ation  and I n j u r i e s  t o  P e r s o n a l i t y ,2 9  Harv. L .  Rev.  640,  .



~ b i l l  was t h e  
C o u r t  t o o k  h i  
t h e  b a s i s  o f

i n v a l i d i t y  o f  t i l l s  l e g i s l a t i o n .  N a t u r a l l y  enough ,  
s c la im  at  i t s  f a c e  v a l u e  and f o u n d  no l e g i s l a t i o n  
w h ich  s p e c i f i c  p e r fo r m a n c e  c o u l d  h e  d e c r e e d . ^

t h i s
on

This case i s  very d i f f e r e n t  from G iles  v. H arr is— the 
d i f f e r e n c e  having been e x p l i c i t l y  foreshadowed by G i le s  v. Harris  
I t s e l f .  In that case th is  Court dec la red  "we are not prepared to say 
that an a c t io n  at law cou ld  not be maintained on the f a c t s  a l l e g e d  
in the b i l l . "  189 U.S. at  485. That i s  p r e c i s e l y  the b a s i s  o f  the 
present  a c t i o n ,  brought under the f o l l o w in g  "appropriate  l e g i s l a t i o n "  
o f  Congress to  enforce  the F i f teenth  Amendment:

"Every person  who, under c o l o r  o f  any s t a t u t e , .  . . o f  
any State ,  sub jects ,  or  causes  to be sub jected ,  any c i t i z e n  o f  the 
United S ta tes .  , . within the j u r i s d i c t i o n  th e re o f  to the depriva­
t i o n  o f  any r ig h ts ,  p r i v i l e g e s ,  or immunities secured by the 
Const i tu t ion  and laws, s h a l l  be l i a b l e  to  the party  in ju re d  in an 
a c t io n  at law. . . . " 4  . .

The F i f t e e n th  Amendment secures  freedom from d is c r im in a t io n  on 
account o f  race in matters a f f e c t i n g  the fra n ch ise .  Whosoever 
"under c o l o r  o f  any s ta tu te "  su b je c ts  another to such d iscr im ination  
thereby deprives  him o f  what the F i f t e e n t h  Amendment secures and, 
under S ect ion  1979 becomes " l i a b l e  to the party  in ju r e d  in an ac t ion  
at  law ."  The theory o f  the p l a i n t i f f ' s  a c t io n  i s  that the defendants, 
a c t in g  under c o l o r  o f  S ect ion  -5654, d id  d iscr im inate  against  him 
because that Sect ion  inherent ly  operates  d i s c r im in a t o r i l y .  I f  th is  
c la im i s  susta ined  h is  r i g h t  to sue under R. S. Sect ion  1979 f o l lo w s .  
The b a s i s  o f  t h i s  act ion  i s  in e q u a l i ty  o f  treatment though under 
c o l o r  o f  law, not den ia l  o f  the r ig h t  to vo te .  Compare Nixon v. 
Herndon, 273 U.S. 536.

The other pre l im inary  o b j e c t i o n  to  the maintenance 
o f  t h i s  a c t io n  i s  l ik e w ise  untenable. To v in d ica te  h i s  present  
gr ievance the p l a i n t i f f  d id  not have to pursue whatever remedy may 
heave been open to him in the state c o u r ts .  Normally, the s ta te  
l e g i s l a t i v e  p r o c e s s ,  sometimes e x e r c i s e d  through ad m inistra t ive  
powers c o n fe r re d  on sta te  c o u r t s ,  must be completed b e fore  r e s o r t  
to  the fe d e ra l  courts  can be had. Pr e n t i s  v. A t l a n t i c  Coast Line Co. 
211 U.S. 210. But the s tate  procedure open f o r  one in the p l a i n t i f f ' s  
s i t u a t i o n (S e c t i o n  5654) has a l l  the in d i c i a  o f  a conventional  
j u d i c i a l  p roceed in g  and does n o t . c o n f e r  upon the Oklahoma courts  
any o f  the d i s c r e t i o n a r y  o f  i n i t i a t o r y  funct ions  that are character ­
i s t i c  o f  ad m in is tra t ive  a g enc ies .  See Section 1 o f  A r t i c l e  IV o f
the Oklahoma C o n s t i tu t io n ;  Oklahoma Cotton Ginners* Ass 'n  v ._State ,
174 Okla. 243. Barring only e x c e p t io n a l  c ircumstances,  see e . g .  
Gi l c h r i s t  v. Interborough Rapid Transi t  Co . , 279 U.S. 159, or 
e x p l i c i t  s ta tu to r y  requirements,  ec .  48 Stat.  775; 50 Stat ,  738;
28 U .S .C . j  4 1 (1 ) ,  r e s o r t  to  a fed era l  court  may be had without f i r s t  
exhausting the ju d i c i a l  remedies o f  s ta te  cour ts .  Bacon v, Rutland 
R. R . , 232 U.S. 134; P a c i f i c  Te l .  & T e l .  Co. v. Kuykendall, 265 U.S. 
196.

We th e r e fo r e  cannot a v o id  passing  on the merits of  
p l a i n t i f f ' s  c o n s t i t u t i o n a l  c la im s.  The reach o f  the F i f t e e n th  
Amendment aga inst  c o n tr iv a n ce s  by a state  to  thw art  equality i n  the  
enjoyment o f  the r i g h t  to vote  by c i t i z e n s  o f  the  U n i te d  S t a t e s  
rega rd less  o f  race or c o l o r ,  has been amply expounded oy p r i o r  
d e c i s i o n s .  Guinn v. United S ta te s , 238 U.S. 347; Myer^_v . ..And.eggor^ 
238 U.S. 368. The Amendment n u l l i f i e s  s o p h is t i ca te d  as w el l  as

3 11 I f  the s e c t i ons o f  the~constItuTTon concerning r e g i s t r a t io n  were

we are not w i l l i n g  to assume that they w e  purDOse
the a l l e g a t i o n s  and main o b j e c t  o f  the d u x , -
g r a n  t in g 65 the r e l i e f  which I t  wa, necessary  to pray 
that o b je c t  should be secu red ."  189 U.S. 
d i f f e r e n c e  between an a c t io n  f o r  damages

to
that 

o f  
o f

to pray in order that 
at 487. Recognition o f  the 
and the equitable r e l i e f  

c lo se  of  the
prayed^for  end Brown
o p in ion .  See 189 U.S. at 4oo. . A t f o r  a fed era l  court towere o f  the op in ion  that i t  was competent fo r  a re ^  Harrl3>
grant even the equ itab le  r e l i e f  a s k e d “  13 whloh became

4The A c t  o f  A p r i l  2 0 , i S p ,  o .  22 ,  now 8 0 . 3 . 0 .  143.
Sect ion  1979 o f  the Revised Statutes ,  ana 8



4

simple minded modes o f  d is c r im in a t io n .  I t  h i t s  onerous procedural  
requirements which e f f e c t i v e l y  handicap ex erc ise  o f  the f ran ch ise  
hy the c o lo r e d  race  although the a b s tra c t  r i g h t  to vote  may remain 
u n re s t r i c t e d  as to ra ce .  When in G-uinn v. United S ta tes ,  supra, 
the Oklahoma "grandfather c lause"  Was found v i o l a t i v e  o f  the 
F i f t e e n th  Amendment, Oklahoma was con fronted  with the ser ious  task 
o f  d ev is ing  a new r e g i s t r a t i o n  system consonant with her own 
p o l i t i c a l  ideas hut also  c o n s is te n t  with the Federal C o n s t i tu t ion .
We are compelled t o  conclude,  however r e l u c t a n t l y ,  that the 
l e g i s l a t i o n  o f  1916 partakes too  much o f  the In f i rm ity  o f  the 
"grandfather  c lau se"  to  he able to surv ive .

Section 5652 o f  the Oklahoma s ta tu tes  makes r e g i s ­
t r a t i o n  a p r e r e q u i s i t e  to v o t i n g .  ̂ By Sect ions  5654 and 5659° 
a l l  c i t i z e n s  who were q u a l i f i e d  t o  vote  in 1916 hut had not voted  
in 1914 were required  to  r e g i s t e r ,  save in  the ex cep t ion a l  circum­
stances ,  he tween A p r i l  30 and May 11, 1916, and in d e fa u l t  o f  such 
r e g i s t r a t i o n  were p e rp e tu a l ly  d isen franch ised .  Exemption from th is  
onerous p r o v is i o n  was enjoyed hy a l l  who had r e g i s t e r e d  in 1914. But 
th is  r e g i s t r a t i o n  was h e ld  under the s ta tu te  which was condemned in 
the Guinn case .  Unfair d isc r im in a t ion  was thus re ta in e d  hy auto­
m a t ic a l ly  granting  v o t in g  p r i v i l e g e s  f o r  l i f e  to  the white c i t i z e n s  
whom the c o n s t i t u t i o n a l  "grandfather c lause"  had s h e l te r e d  while 
su b je c t in g  c o l o r e d  c i t i z e n s  to a new burden. The p r a c t i c a l  e f f e c t  
o f  the 1916 l e g i s l a t i o n  was to a c c o rd  to the members o f  the Negro 
race who had been d iscr im ina ted  against  in the outlawed r e g i s t r a t i o n  
system o f  1914, not more than 12 days within which to r e a s s e r t  con­
s t i t u t i o n a l  r ig h ts  which th is  Court found in the Guinn case to  
have been improperly taken from them. We b e l i e v e  that the oppor­
tun ity  thus given Negro v o ters  to f r e e  themselves from the e f f e c t s  
o f  d iscr im ination  to which they should never have been s u b je c ted  
was too cabined and c o n f in e d .  The r e s t r i c t i o n s  imposed must be 
Judged with re ference  to  those f o r  whom they were designed. I t  
must be remembered that we are dea l ing  with a body o f  c i t i z e n s  
la ck in g  the h a b its  and t r a d i t i o n s  o f  p o l i t i c a l  independence and 
otherwise l i v i n g  in circumstances which do not encourage i n i t i a t i v e  
and e n terp r ise .  To be sure, in except iona l  cases  a supplemental 
p e r io d  was a v a i la b le .  But the narrow b a s is  o f  the supplemental 
r e g i s t r a t i o n ,  the very b r i e f  normal p e r io d  o f  r e l i e f  f o r  the persons 
and purposes in question ,  the p r a c t i c a l  d i f f i c u l t i e s ,  o f  which the

5 " I t  sha l l  be the duty o f  every q u a l i f i e d  e l e c t o r  in  th is  s ta te  to 
r e g i s t e r  as an e l e c t o r  under the p r o v i s i o n s  o f  th is  Act,  and no 
e l e c t o r  sh a l l  be permitted to vote at any e l e c t i o n  unless  he sha l l  
r e g i s t e r  as herein  prov ided ,  and no e l e c t o r  sha l l  be perm itted  to 
vo te  in any primary e l e c t i o n  o f  any p o l i t i c a l  party  except o f  the 
p o l i t i c a l  party  o f  which h i s  r e g i s t r a t i o n  c e r t i f i c a t e  shows him to 
be a member." Sect ion  2, Oklahoma Laws o f  1916, c .2 4 .
6 "Any person who may become a q u a l i f i e d  e l e c t o r  in any p r e c in c t  in 
t h i s  State a f t e r  the tenth day o f  May, 1916, or  a f t e r  the c l o s i n g  
o f  any other  r e g i s t r a t i o n  p e r io d ,  may r e g i s t e r  as an e l e c t o r  by 
making a p p l i ca t io n  to the "registrar o f  the p r e c in c t  in which he i s  
a q u a l i f i e d  v o te r ,  not more than twenty nor l e s s  than ten days be­
f o r e  the day cf hold ing  any e l e c t i o n  and upon complying with a l l  
the terns and p ro v is io n s  o f  t h i s  A c t , /'beginning, twenty days^ e iore  
the date o f  ho ld ing  any e l e c t i o n  and continuing f o r  a 
ten days, p r e c in c t  r e g i s t r a r s  sha l l  have no author i ty  
e l e c t o r s  at any time except as provided in 
t r a t i o n  c e r t i f i c a t e  is su ed  by any 
time except  as herein prov ided  
Laws o f  1916, c .24»

/ a n d  i t  s h a l l  be 
such  q u a l i f i e d  e l e c t o .  
p r o v i s i o n s  o f  t h i s  A c t ,

p e r io d  o f  
to r e g i s t e r

______ th is  Act and no r e c i s -
o r e c i n c t  r e g i s t r a r  at any other  

shall  be v a l id .  " Sect ion  9, Oklahoma

t h e  d u ty  o f  p r e c i n c t  r e g i s t r a r s  t o  
e l e c t o r s  i n  t h e i r  p r e c i n c t  under  t h e

r e g i s t e r  
,orris and



record  In th is  case g iv es  glimpses, in e v i ta b le  in the administration 
o f  such s t r i c t  r e g i s t r a t i o n  p r o v i s i o n s ,  leave  no escape from the 
conclusion that the means chosen as s u b st i tu te s  f o r  the in v a l id a te d  
"grandfather  c lause"  were themselves in v a l i d  under the F i f t e e n th  
Amendment. They operated u n fa i r ly  against  the very  c la s s  on whose 
b e h a l f  the p r o te c t io n  o f  the C on st i tu t ion  was here s u c c e s s fu l ly  
invoked.

The judgment o f  the C i r c u i t  Court o f  Appeals must, 
th e r e fo r e ,  be reversed and the cause remanded to the D i s t r i c t  Court 
f o r  futher  proceedings  in accordance with th is  op in ion .

Mr. Ju st ice  McReynolds and Mr. J u s t i c e  Butler  think 
that the court  below reached  the r i g h t  conc lus ion  and that i t s  
judgment should be a f f irm ed .

Mr. J u s t i c e  Douglas took  no por t  in the cons iderat ion  
or d i s p o s i t i o n  o f  th is  case .

A true copy.

Test:

Clerk,  Supreme Court,  U. S





I N D E X .  

S u b j e c t  I n d e x .

p a g e

Statement...................................... ........................................ 1
Outline of contentions upon behalf of defendants, the re­

spondents ......................................................................  8
I.

Plaintiff cannot in the same action both assert that 
the Oklahoma Registration Statutes are void, and rely 
upon them. If the statutes are void, as he contends, 
registration would have been a vain thing. Accepting 
the allegations of the petition for the purposes of this 
case only, and this Court should so accept them without 
passing upon the validity of the challenged statutes, it 
must be held that plaintiff has not been damaged and 
cannot recover, for if these allegations are taken as true, 
for the purposes of the case, he had the right to vote 
without registration. The plaintiff thus has foreclosed 
himself from invoking the several questions of law and 
of fact which he seeks to present. For these and other 
reasons hereinafter shown, plaintiff has not stated a 
cause of action. He presents no federal question for 
decision.................................................................................. 1 1

I I .
Myers v. Anderson, 238 U. S. 368, 59 L. ed. 1349 

upon which plaintiff relies, does not support the con­
tention that plaintiff can proceed against the registra- 
10n officer. In fact, the doctrine announced in Myers



INDEX — C o n t i n u e d .

page

v. Anderson affirmatively supports the contention that 
plaintiff cannot sue the registration officer in this case.

For these further and additional reasons plaintiff 
has not stated or made a case............................................

I I I .
Regardless of whether or not the registration law 

of Oklahoma is valid; and if valid, regardless of whether 
or not it was properly administered, it cannot be held 
that plaintiff sustained any actionable injury or that 
he was denied any constitutional right....................... .

I V .
Plaintiff was required to apply for registration in 

1916. Let us here assume, for the sake of argument, that 
he did in fact, as alleged, make proper application in 
1916, and that same was wrongfully denied, and for the 
purpose of argument only, bar from consideration the 
rule already discussed under our Proposition I, that a 
plaintiff cannot in the same proceeding both assert the 
invalidity of statutes and rely upon them; still the plain­
tiff cannot recover, because he did not appeal from the 
wrongful decision, and thereby failed to exhaust his rem­
edies provided by the Registration Statutes. For this 
additional reason the plaintiff has failed to make a case. 38

V .
The defendant registrar Parks had no authority to 

register the plaintiff in 1934. The statutes (Sec. 5654) 
limited his authority to register (1) those who subse­
quent to the next prior registration period had become 
qualified to vote in the precinct, and (2) those qualified 
electors who theretofore had not been registered be­
cause of absence, sickness, or other unavoidable mis­
fortune. Plaintiff Lane does not claim to belong to eith­
er of these classes. For this further and additional rea­
son plaintiff has failed to state or make a case.............. 46



V I .
It conclusively appears that in fact plaintiff Lane 

never applied for registration to the 1916 precinct reg­
istrar. It was so held in the Circuit Court of Appeals 
(R. 100). There is no proof that the 1916 registrar in 
the precinct where plaintiff lived ever refused registra­
tion of any colored voter who applied to him. There is 
no evidence that any colored voter in Wagoner County 
was ever wrongfully denied registration, upon proper 
application........................................................................ 47

V I I .
There was no proof of conspiracy upon the part of 

the defendants, or any of them, to deny negroes the right 
of registration. The Circuit Court of Appeals so held
(R. 100).................................................................................  51

V I I I .
The Oklahoma Registration Statutes do not vio­

late any of the constitutional provisions invoked by 
plaintiff. They cannot be overthrown by any or all the 
applicable rules for interpretation.

No resort can be had to administrative results or 
other extraneous matters, for the statutes are not am­
biguous or of doubtful meaning.

The challenge for alleged discrimination is not sus­
tainable. The sole test of the constitutionality of the al­
leged discriminatory provisions is this: Were those who 
did not vote in 1914 subjected in 1916 to the same stand­
ard of qualification as to the right to vote, as those who 
bad voted in 1914?
(<l) Statutes which are clear and unambiguous, as in 

the instant case, when challenged upon constitu­
tional grounds, must be tested from the statutory 
provisions themselves, unaided by extraneous facts 
with respect to the manner in which they have been

INDEX — C o n t i n u e d .

PAGE



INDEX— C o n t i n u e d .

pag e

administered. Such extraneous matters are resort­
ed to for the sole purpose of determining the in­
tent of the Legislature, where the intent is left 
doubtful upon the face of the statutes. Petitioner s 
contention that the Oklahoma Registration Stat­
utes violate constitutional provisions because the 
evidence here shows that actual administration un­
der the statutes achieved a result contrary to con­
stitutional provisions, is not supported by author­
ities cited upon the point. These cases are here ex­
amined and distinguished...........................................

(b) The challenge of a statute upon the ground of un­
constitutionality is not sustainable, unless the case 
is so clear as to be free of reasonable doubt.............

(c) Where a statute has long been acquiesced in by 
the public and treated as valid by various govern­
mental departments, ordinary presumption of con­
stitutionality is greatly strengthened.......................

(d) The test of a registration statute alleged to be dis­
criminatory is this: Does the statute set up for one 
class of electors a different or additional standard 
of qualifications to vote, from that required of other 
electors? The “ G-randfather Clause”  having been 
h e l d  unconstitutional, was not applied in 1916. 
Plaintiff Lane and others similarly circumstanced 
were only required in 1916 to meet the same tests 
already met by the 1914 voters. A plaintiff cannot 
successfully complain on account of an illegal stand­
ard to which he was never subjected. There was no 
discrimination. The Circuit Court of Appeals held 
that there was no discrimination (R. 100-101). The 
requirement for mandatory registration of those 
who had voted in 1914, and whose names were on 
the 1914 lists of voters, was for convenience. There 
was uniformity in basis of qualification for regis­
tration ........................................................................... 64



(e) An examination of all the cases where registration 
laws have been stricken down upon the ground that 
they were discriminatory, shows that in every in­
stance the statutes in question were overthrown be­
cause as to a given and complaining class statutory 
requirement was made for subjecting that class to 
an additional or different standard of qualifications 
to vote than that required of others. Exactly the 
same standards of qualifications to vote have al­
ways been required under the registration law of 
Oklahoma, as to all classes. The election officers at 
the polls in 1914 tested the voters by the same stand­
ards applied by the registrars in 1916. Petitioner ’s 
contention that the statutes are discriminatory ap­
pears to be without precedent..................................  71

(f) Petitioner’s contention that the Oklahoma Kegis-
tration Law is void because of the time limit for 
registration is not well founded................................  71

(g) Further as to petitioner’s contention that the ne­
groes of Oklahoma were discriminated against by 
the statutory provisions making it the duty of pre­
cinct registrars to issue registration certificates to 
qualified electors who voted in the general election 
of 1914........................................................................... 74

T a b l e  of  C a s e s .
Binswanger v. Whittle, et al. (Md. 1938), 2 Atl. (2d)

174.................................................................................. 68
City of Tulsa v. Southwestern Bell Telephone Go., 75 

Fed. (2d) 343...............................................................  64
Merman v. State, 89 Okl. 242, 244.................................. 44
First, Nat. Bank v. Board of Commrs., 264 U. S. 450, 68 

L. ed. 784..................................... ........................... 42, 43
dies v. Harris, 189 U. S. 475, 47 L. ed. 909............. 11, 14, 15
Grainger v. Douglas (6th Cir.), 148 Fed. 513............. 54, 58
Guinn v. United States, 238 U. S. 347..............................  45



Henderson v. Mayor of New York, 92 U. S. 259, 23 L.
ed. 543............................................................................  59

Hurley v. Commission of Fisheries of Virginia, 257 U.
S. 223, 66 L. ed. 206......................................................  17

Minnesota v. Barber, 136 U. S. 313, 34 L. ed. 455...........  60
Montana Co. v. St. Louis Mining Co., 152 IT. S. 160, 38

L. ed. 398.......................   54
Moore v. Otis (8th Cir.), 275 Fed. 74................................. 54
Myers v. Anderson, 238 U. S. 368, 59 L. ed. 1349.............

............................................................ 28, 31, 32, 33, 45, 71
Nixon v. Herndon, 273 IT. S. 536, 71 L. ed. 759.................  30
State v. Hall (Wis.), 190 N. W. 457..................................  55
State ~sr. Layton (Mo.), 61 S. W. 171, 177.........................  57
Trudeau v. Barnes, 1 Fed. Sup. 453, 65 Fed. (2d) 563

(5th Circuit), 290 U. S. 659, 78 L. ed. 571.................
.................................................................. 39, 40, 41, 42, 45

Tick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220. .. .58, 59

Co n s t i t u t i o n a l  P r o v i s i o n s .
Oklahoma Constitution, Section 1, Article I I I . .. .66, 67, 70
IT. S. Constitution, Fourteenth Amendment, Sec. 1 ..........27
IT. S. Constitution, Fifteenth Amendment......................... 27

S t a t u t e s .
Oklahoma Statutes 1931, Sec. 5652..................................  24
Oklahoma Statutes 1931, Sec. 5654..........25,38,46,74
Oklahoma Statutes 1931, Sec. 5666..................................  73
Oklahoma Statutes 1931, Sec. 5657..................................  26
Revised Statutes, Sec. 1979 (Sec. 43, Title 8, IT. S. Code

Annotated)......................................................................27
Revised Statutes, Sec. 2004 (Sec. 31, Title 8, IT. S. Code 

Annotated)..................................................................... 28

I N D E X — C o n t i n u e d .
PAGE



INDEX — C o n c l u d e d .

P A G E

T e x t  B o o k s .

Black on Interpretation of Laws, pp. 93-94.....................  62
Black on Interpretation of Laws, pp. 196-197............... . 60
Cooley’s Constitutional Limitations, 6th Edition, pp. 79-

80.................................................................................... 52
Cooley’s Constitutional Limitations, 6th Edition, pp. 84-

85................................................................................53, 57
Cooley’s Constitutional Limitations, 6th Edition, p. 209. 34 
Cooley’s Constitutional Limitations, 6th Edition, pp.

216-217...........................................................................  61
Cooley’s Constitutional Limitations, 6th Edition, p. 222. 16 
Cooley’s Constitutional Limitations, 6th Edition, p. 756. 67

O p i n i o n s .
Opinion of the Attorney General of the State of Okla­

homa, of date April 1, 1922 44





In the Supreme Court of the United States

No. 460
O C T O B E R  T E R M ,  1938.

I. W . LANE, Petitioner, 
vs.

JESS WILSON, JOHN MOSS AND MARION PARKS, 
Respondents.

(ON W R IT  O F C E R T IO R A R I  T O  T H E  U N I T E D  S T A T E S  C IR C U IT  

C O U R T  O F  A P P E A L S  FO R T H E  T E N T H  C IR C U IT . )

B R I E F  of R E S P O N D E N T S .

Statement.

Petitioner’s brief does not accurately state the evi­
dence. In the interest of brevity respondent will not re­
state the case, but merely point out the more glaring mis­
statements and omissions to to be found in petitioner’s 
brief. Petitioner’s so-called “ Preliminary Statement”  
found in his brief at pages 7 to 11 is purely argumentative, 
and is in fact nothing more than petitioner’s own conclu­
sions summarizing his whole argument. There is nothing in 
the record to show, as alleged in petitioner’s brief, that this 
case is the climax of twenty-five years litigation involving 
the right of negroes to vote in Oklahoma, or that they have



2 I .  W .  L a n e  v . J e s s  W i l s o n ,  e t  a l .

been denied said right in the State, or in Wagoner County, 
but in truth and in fact the record shows that large numbers 
of negroes are registered and voted throughout the State 
(R„ p. 48).

Petitioner makes a further attempt to charge the State 
of Oklahoma with alleged wrongful conduct by the state­
ment found at pages 9 and 10 of his brief, to the effect that 
the Legislature convened immediately after the fall of the 
“ Grandfather Clause”  to enact the Registration Law of 
1916 which he alleges continued the operation of said 
“ Grandfather Clause” , and had the effect of disfranchis­
ing Lane and others.

There is nothing whatsoever in the entire record to 
support or lend the least credit to this statement. This 
Court judicially knows that the decision in the Guinn case 
was rendered June 21,1915, and that it was more than seven 
months later, as shown by the records of its proceedings, 
of which this Court will take judicial notice, that the Leg­
islature convened in special session. And it is further shown 
by the records of such legislative proceedings that the said 
Legislature considered many and varied subjects concern­
ing the affairs of the State generally; that the Registra­
tion Law was not in fact passed and approved until Feb­
ruary 26, 1916. (See, Session Laws of Oklahoma 1916.)

Petitioner’s purported summary of the evidence with 
respect to who was the 1916 registrar in plaintiff’s precinct 
omits almost entirely both the oral and documentary evi­
dence, which shows that Pace was the sole registrar in said 
precinct at the two registration periods in 1916. Petitioner 
fails to state that he himself introduced the only available 
public record of Wagoner County showing the lists of the 
voters registered in 1916 in said precinct, Gatesville num­
ber one, to-wit: Pages 71 and 72, volume one of the Coun­



B r i e f  o f  R e s p o n d e n t s . 3

ty Register of Election, which record, together with the 
supporting evidence, shows that Pace was the registrar in 
said precinct for both of the 1916 registration periods (R., 
pp. 39, et seq.). Petitioner further fails to show that the 
various registration certificates—originals produced by the 
voters themselves—were introduced in evidence, showing 
that same were issued and signed by Pace in the 1916 reg­
istration periods (R., pp. 40 to 42). Petitioner further fails 
to show that in addition to the testimony of Pace that he 
was the registrar at both of the 1916 registration periods, 
five other witnesses testified to the same effect. Thus it ap­
pears that petitioner omitted from his statement, almost 
in its entirety, the evidence upon which the Circuit Court 
of Appeals of the Tenth Circuit based its finding that Lane 
did not in fact apply for registration in 1916, which was the 
date for making the permanent registration lists of the 
voters, subject to additions to be made thereto from time 
to time, as provided by the statutes.

Petitioner, perhaps inadvertently, omits any mention 
of the testimony of one Jim Biggerstaff, whose testimony in 
the former trial of this cause was, by stipulation of the 
parties read in evidence, which testimony was to the effect 
that he was editor and custodian of the records of the Wag­
oner County Democrat, a newspaper of general circulation 
in Wagoner County, for the year 1916, and that such records 
show that in the issue of April 27,1916, there was published 
a list of the registration officers for that year, which list in­
cluded the name of James L. Pace as precinct registrar for 
Gratesville precinct number one (R., pp. 44 and 45).

We do not undertake, as a part of respondents’ state­
ment, to point out many misstatements of fact which ap­
pear in the course of the argument upon behalf of the peti­
tioner. The argument so commingles questions of fact with 
the brief writer’s conclusions that the purported state­



4 I .  W .  L a n e  v . J e s s  W i l s o n ,  e t  a l .

ments of fact in course of the argument are, it seems to 
us, quite unreliable. For illustration the following:

At page 66 of petitioner’s brief it is said:
“ It is not controverted that petitioner made ap­

plication for registration, at the proper time, and that 
he was refused registration.”

The respondents contended throughout the trial, and upon 
appeal, that the petitioner, Lane, never did apply for reg­
istration at the proper time and that Parks was without 
authority to register Lane in 1934.

At page 69, the brief writer, whilst undertaking to 
show that the respondent, Moss, participated in an alleged 
conspiracy, states:

“ # * * respondent John Moss admitted instructing 
Parks about the registraion law; and reading to Parks, 
as a statement of the law, a certain letter he had 
received which construed the law as contended by re­
spondents (R. p. 48).”

The letter discredits the above statement, insofar as it is 
invoked upon the conspiracy theory. It is as follows:

“ Headquarters
Negro Democratic State Organization 

228% North Second Street 
Muskogee, Oklahoma.

June 20, 1934
Mr. J. M. Biggerstaff, Editor,
The Wagoner Record 
Wagoner, Oklahoma.
Dear Sir:

A  word from one Democratic editor to another— 
I am, as you will notice, Publicity Director of the 
Negro Democrats of the state. There has come to my 
attention that an effort will be made to discredit Ne­



B r i e f  o f  R e s p o n d e n t s . 5

groes of the state in that they are forced to register 
as Democrats. I know here in this county and in other 
counties where Negroes have registered in large num­
bers, no efforts were made to force them to register 
as Democrats.

At the approaching registration period I hope 
no efforts will be made in your county to force Ne­
groes to register as Democrats or to prevent the few 
eligible under the law from registering.

There will not be more than 100 in your entire 
county eligible to vote at this time under the law, 
which only allows those coming of age since last reg­
istration time or who have moved into the state one 
year since last registration and, of course, have lived 
in the county and precinct the required time.

Negroes in this county are mostly registered Dem­
ocrats because they are anxious to have a voice in se­
lecting public officials. Certainly we would not expect 
violating our laws to begin at registration periods.

Hoping all will end well for us, we are 
Very truly yours,

C. G. Lowe, Editor 
The Muskogee Lantern, Negro Dem­

ocratic Newspaper and Publicity 
Manager Negro Democratic State 
Organization.”

The respondent, Moss, merely admitted that in his 
opinion the foregoing letter correctly construed the Okla­
homa Registration Law applicable to the 1934 registra­
tion, and that he had shown the letter, with a statement 
of his opinion with respect thereto. It will be noted that the 
respondent, Moss, merely exhibited the foregoing letter, 
which was by the Publicity Director of the Negro Dem­
ocrats of the State of Oklahoma, and stated in substance 
that in his opinion the State Director had correctly con­



6 I .  W .  L a n e  v . J e s s  W i l s o n ,  e t  a l .

strued the Oklahoma Registration Law. The evidence does 
not show that this respondent did anything whatsoever even 
tending to connect him with the alleged conspiracy. (The 
evidence does not connect the respondent Wilson with the 
alleged conspiracy.)

At page 39 of petitioner’s brief it is said that those who 
voted in 1914 could continue to vote thereafter without be­
ing registered at all. This is not correct.

At page 61 of petitioner’s brief it is said:
“ * * * Very probably, persons who were not citizens, 

and also felons, convicts, paupers, idiots and lunatics 
actually voted in fulsome hordes in 1914, under the 
Grandfather Clause— under the terms of the Grand­
father Law, every felon, pauper, and idiot in the state 
could vote who could prove that he was on ‘ January 
1, 1866 * * * entitled to vote’, etc. * * * Yet by the ef­
fect of Sec. 5654, every alien, felon, idiot or lunatic 
who voted in 1914 under the Grandfather Law, wheth­
er in consonance with its spirit or contrary to its terms, 
is today duly qualified to vote, despite the requirements 
of said Sec. 1, of Article III, of the State Constitution.”

Said section 1, article III of the State Constitution 
as originally adopted in 1907 has always been in force 
since its adoption. After stating the qualifications of elec­
tors, there was a proviso, as follows:

“ * * # Provided, that no person adjudged guilty 
of a felony, subject to such exceptions as the Leg­
islature may prescribe, nor any person, kept in a 
poorhouse at public expense, except Federal, Confed­
erate and Spanish-American ex-soldiers or sailors, 
nor any person in a public prison, nor any idiot or 
lunatic, shall be entitled to register and vote.”

We, therefore, challenge the above quoted statement in 
petitioner’s brief as wholly unfounded.



B r i e f  o f  R e s p o n d e n t s . 7

As an illustration of petitioner’s confusion of theories 
and his misconception of the facts, attention is called to the 
statement at page 39 of his brief, that Lane had only ten 
days in this life within which to register and preserve the 
privilege of franchise. Here the petitioner positively com­
mits himself to the theory that the respondent, Parks, the 
1934 registrar in petitioner’s precinct, had no authority 
whatever under the law to register petitioner, yet failure 
of Parks to register Lane is the alleged ground for this 
suit in damages. In other words, whilst saying that Parks 
had no authority under the challenged Registration Statutes 
to register Lane, petitioner charges the respondents with 
gross wrongs, because Parks did not register Lane in 1934.

For want of reliability of statement in petitioner’s 
brief, we are under the necessity of suggesting, most re­
spectfully, an examination of the very short record which 
covers the facts involved.

Respondents contend that the record and petitioner’s 
brief, considered as a whole, commit the petitioner irre­
trievably to this absurdity, to-wit: Petitioner says that 
the Oklahoma Registration Statutes are utterly void. He 
admits that he, the petitioner, declined to comply with the 
requirements of the Registration Law, because he believed 
same to be unconstitutional. He claims that he applied at 
the general registration period in 1916 for registration, 
and that upon the denial of his application he declined to 
appeal, as required by the statute. He says as one of the 
grounds for declaring the challenged statutes unconstitu­
tional, that he had only ten days within which to register, or 
be forever barred, and that this ten-day period was in 1916. 
Yet he sues Parks, the 1934 registration officer of petition­
er’s precinct, for failure of Parks to register petitioner in 
1934, at the same time saying that under the Oklahoma 
law Parks had no authority to register him in 1934. Re­



I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

spondents claim that there is no theory, whatsoever, pre­
sented, upon which recovery can be had, and that the pre­
tended action is wholly without any precedent to support it, 
and contrary to reason.

OUTLINE OF CONTENTIONS UPON BEHALF OF DE- 
FENDANTS, THE RESPONDENTS.

I .

Defendants contend that plaintiff’s own petition and 
theory foreclose him from the recovery of damages, be­
cause if the registration statutes of Oklahoma are void, as 
claimed by plaintiff, he had the right to vote without reg­
istration, and therefore no damage was done.

The principal object of the petition is to procure a de­
cision holding that the Oklahoma statutes with respect to 
registration are unconstitutional and therefore void. Plain­
tiff’s contentions center upon this theory. He seeks to re­
cover damages from the 1934 precinct registrar for denial 
of registration, and joins the other defendants for alleged 
conspiracy.

I I .
Defendants further contend that plaintiff should have 

demanded his right to vote at the polls, and if there denied, 
he should have sued the election officers rather than the 
registrar.

I I I .
Defendants contend that regardless of the validity or 

invalidity of the Oklahoma Registration Law, and regard­
less of the manner of its administration, it cannot be held 
that plaintiff has sustained any actionable injury.



B r i e f  o f  R e s p o n d e n t s . 9

IV .
Defendants contend that the first registration period 

in 1916 was the time when plaintiff was required to register, 
and that if application was then made and wrongfully de­
nied, as alleged, plaintiff’s exclusive remedy was by appeal 
to the courts as provided by the statutes. This remedy he 
did not invoke.

V.

Defendants further contend that the 1934 registrar 
had no authority, under the statutes or otherwise, to reg­
ister plaintiff in 1934.

V I .
Defendants further contend that in fact, as shown by 

plaintiff’s own admissions and other conclusive evidence, 
plaintiff did not apply to the then registrar for registra­
tion in 1916.

V I I .
Defendants say that petitioner’s brief does not accur­

ately or fairly state the evidence, and that in fact there 
was no evidence of conspiracy or other wrongdoing upon 
the part of the defendants, or any of them.

V I I I .
Defendants contend that the challenged provisions of 

the statutes are constitutional and valid. They cannot be 
overthrown under the rules for statutory interpretation 
here applicable.

The registration statutes are clear and unambiguous, 
and hence do not permit of resort to administrative results 
or other extraneous matters for their interpretation.



10 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

These statutes are not discriminatory. The test as 
to qualifications for registration in 1916 was the same as 
that which the 1914 voters had met. Lane was never sub­
jected to the provisions of the “ Grandfather Clause” ; 
hence he cannot be heard to complain of the illegal test 
or standard in those void statutory provisions.

No t e : Throughout the proceedings defendants con­
tended that the petition did not state a cause of action. They 
objected to the introduction of any evidence on this ground. 
At the conclusion of all the evidence defendants moved for 
a directed verdict in their favor, which motion was sus­
tained.



B r i e f  o f  R e s p o n d e n t s . 11

I.

Plaintiff cannot in the same action both assert that the 
Oklahoma Registration Statutes are void, and rely upon 
them. If the statutes are void, as he contends, registration 
would have been a vain thing. Accepting the allegations 
of the petition for the purposes of this case only, and this 
Court should so accept them without passing upon the 
validity of the challenged statutes, it must be held that 
plaintiff has not been damaged and cannot recover, for 
if these allegations are taken as true, for the purposes of 
the case, he had the right to vote without registration. The 
plaintiff thus has foreclosed himself from invoking the sev­
eral questions of law and of fact which he seeks to present. 
For these and other reasons hereinafter shown, plaintiff 
has not stated a cause of action. He presents no federal 
question for decision.

Petitioner bases Ms alleged right of recovery solely 
upon his contention that the Registration Laws of Okla­
homa are void. The Circuit Court of Appeals so stated pe­
titioner’s theory (R., p. 100). As to petitioner’s theory also 
see various excerpts hereinafter set forth under this head, 
taken from petitioner’s pleading, assignments of error, 
and brief.

Giles v. Harris, 189 U. S. 475, 47 L. ed. 909, conclusive­
ly supports the contention that plaintiff cannot, whilst as­
serting the invalidity of the registration statutes, recover 
for denial of registration. The bill in equity was brought by 
a colored man for himself and on behalf of more than live 
thousand other negro citizens of Montgomery, Alabama, 
similarly situated, against the board of registrars of that 
county. The prayer of the bill was that the defendant reg­
istrars should be required to register the plaintiff and 
others similarly circumstanced. The bill alleged the com­



plainant’s qualifications as an elector, showed his applica­
tion and the application of more than five thousand other 
negroes of the county for registration, and the denial of 
registration. It was alleged that the refusal was arbitrary 
on the ground of their color, and it was further claimed that 
the same thing had been wrongfully done all over the state 
of Alabama. It was further charged that the white popu­
lation of Alabama had framed the state constitution so as 
to afford a fraudulent instrument giving opportunity to 
effect wholesale fraud and wrongful denial of the right of 
negroes to be registered. The bill set forth the material sec­
tions of the state constitution and the general plan about 
which complaint was made, which general plan, as stated by 
this Court, was as follows:

“ By Sec. 178 of article 8, to entitle a person to vote he 
must have resided in the state at least two years, in 
the county one year, and in the precinct or ward three 
months, immediately preceding the election, have paid 
his poll taxes, and have been duly registered as an 
elector. By Sec. 182 idiots, insane persons, and those 
convicted of certain crimes are disqualified. Subject 
to the foregoing, by Sec. 180, before 1903 the following 
male citizens of the state, who are citizens of the United 
States, were entitled to register, viz: First. All who 
had served honorably in the enumerated wars of the 
United States, including those on either side in the 
‘war between the states.’ Second. All lawful descend­
ants of persons who served honorably in the enum­
erated wars or in the war of the Revolution. Third.
‘ All persons who are of good character and who under­
stand the duties and obligations of citizenship under a 
republican form of government.’ As we have said, ac­
cording to the allegations of the bill, this part of the 
Constitution, as practically administered and as in­
tended to be administered, let in all whites and kept 
out a large part, if not all, of the blacks, and those 
who were let in retained their right to vote after 1903,

12 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l ,.



B r i e f  o f  R e s p o n d e n t s . 13

when tests which might be too severe for many of the 
whites as well as the blacks went into effect. By Sec. 
181, after January 1, 1903, only the following persons 
are entitled to register: First. Those who can read 
and write any article of the Constitution of the United 
States in the English language, and who either are 
physically unable to work or have been regularly en­
gaged in some lawful business for the greater part of 
the last twelve months, and those who are unable to 
read and write solely because physically disabled. Sec­
ond. Owners or husbands of owners of 40 acres of 
land in the state, upon which they reside, and owners 
or husbands of owners of real or personal estate in 
the state assessed for taxation at $300.00 or more, if 
the taxes have been paid, unless under contest. By Sec. 
183 only persons qualified as electors can take part in 
any party action. By Sec. 184 persons not registered 
are disqualified from voting. By Sec. 185 an elector 
whose vote is challenged shall be required to swear that 
the matter of the challenge is untrue before his vote 
shall be received. By Sec. 186 the legislature is to 
provide for registration after January 1, 1903, the 
qualifications and oath of the registrars are prescrib­
ed, the duties of registrars before that date are laid 
down, and an appeal is given to the county court and 
supreme court if registration is denied. There are fur­
ther executive details in Sec. 187, together with the 
above-mentioned continuance of the effect of registra­
tion before January 1, 1903. By Sec. 188, after the 
last mentioned date, applicants for registration may 
he examined under oath as to where they have lived 
for the last five years, the names by which they have 
been known, and the names of their employers. This, 
in brief, is the system which the plaintiff asks to have 
declared void. ’ ’

This Court, having analyzed the bill, held that its principal 
object was to obtain registration. Without passing upon 
the constitutionality of the challenged Alabama laws, it was



14 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

held that recovery could not he had because plaintiff alleg- 
ed that the Alabama laws relating to registration were void, 
and at the same time invoked the alleged void laws in the 
same proceeding. The following' from, the opinion, which 
was by the learned Justice H olmes, squarely supports the 
defendants in this case:

“ The difficulties which we cannot overcome are 
two, and the first is this: The plaintiff alleges that the 
whole registration scheme of the Alabama Constitu­
tion is a fraud upon the Constitution of the United 
States, and asks us to declare it void. But, of course, 
he could not maintain a bill for a mere declaration in 
the air. He does not try to do so, but asks to be reg­
istered as a party qualified under the void instrument. 
If, then, we accept the conclusion which it is the chief 
purpose of the bill to maintain, how can we make the 
court a party to the unlawful scheme by accepting it 
and adding another voter to its fraudulent lists? If a 
white man came here on the same general allegations, 
admitting his sympathy with the plan, but alleging 
some special prejudice that had kept him off the list, 
we hardly should think it necessary to meet him with 
a reasoned answer. But the relief cannot be varied 
because we think that in the future the particular plain­
tiff is likely to try to overthrow the scheme. If we ac­
cept the plaintiff’s allegations for the purposes of Us 
case, he cannot complain. We must accept or reject 
them. It is impossible simply to shut our eyes, put 
the plaintiff on the lists, be they honest or fraudulent, 
and leave the determination of the fundamental ques­
tion for the future. If we have an opinion that the bill 
is right on its face, or if we are undecided, we are not 
at liberty to assume it to be wrong for the purposes of 
decision. It seems to us that unless we are prepared 
to say that it is wrong, that all its principal allega­
tions are immaterial, and that the registration plan of 
the Alabama Constitution is valid, we cannot order the 
plaintiff’s name to be registered. It is not an answer



B r i e f  o f  R e s p o n d e n t s . 15

to say that if all the blacks who are qualified accord­
ing to the letter of the instrument were registered, the 
fraud would be cured. In the first place, there is no 
probability that any way now is open by which more 
than a few could be registered; but if all could be, the 
difficulty would not be overcome. If the sections of the 
Constitution concerning registration were illegal in 
their inception, it would be a new doctrine in constitu­
tional law that the original invalidity could be cured 
by an administration which defeated their intent. We 
express no opinion as to the alleged fact of their uncon­
stitutionality beyond saying that we are not willing to 
assume that they are valid, in the face of the allegations 
and main object of the bill, for the purpose of granting 
the relief which it was necessary to pray in order that 
that object should be secured.”  (Italics ours.)

With respect to plaintiff’s claim that the Oklahoma 
registration laws were enacted by the white people of the 
state for the purpose of defrauding the negroes of the right 
of suffrage, attention is called to the further statement re­
garding the claims of Giles, as follows:

“ The other difficulty is of a different sort, and 
strikingly reinforces the argument that equity cannot 
undertake now, any more than it has in the past, to 
enforce political rights, and also the suggestion that 
state constitutions were not left unmentioned in Sec. 
1979 by accident. In determining whether a court of 
equity can take jurisdiction, one of the first questions 
is what it can do to enforce any order that it may make. 
This is alleged to be the conspiracy of a state, although 
the state is not and could not be made a party to the 
bill. Hans v. Louisiana, 134 U. S. 1, 33 L. ed. 842, 10 
Sup. Ct. Rep. 504. The Circuit Court has no constitu­
tional power to control its action by any direct means. 
And if we leave the state out of consideration, the court 
has as little practical power to deal with the people of 
the state in a body. The bill imports that the great



mass of the white population intends to keep the blacks 
from voting. To meet such an intent something more 
than ordering the plaintiff’s name to be inscribed upon 
the lists of 1902 will be needed. If the conspiracy and 
the intent exist, a name on a piece of paper will not 
defeat them. Unless we are prepared to supervise the 
voting in that state by officers of the court, it seems to 
us that all that the plaintiff could get from equity would 
be an empty form. Apart from damages to the indi­
vidual, relief from a great political wrong, if done, as 
alleged, by the people of a state and the state itself, 
must be given by them or by the legislative and politi­
cal department of the government of the United 
States.”

Clearly, plaintiff’s petition primarily presents a dilem­
ma from which he has no escape, under the sound and un­
iformly applied rule above stated in this decision by this 
Court. His main effort, upon the whole, is to show that the 
very statutes which he invokes are void. This Court can­
not make for plaintiff a theory. Without doubt he is here 
bound by his own theory as shown by his petition, his con­
tentions at the trial, the assignments of error, and his brief, 
to all of which we shall refer more fully directly.

If the statutes are void, as alleged, it is as if they 
had never been, and rights cannot be acquired or built up 
under them, and no proceeding can be had against anyone 
for refusing to conform to the void statutes. In Cooley s 
Constitutional Limitations, 6th Edition, p. 222, it is said:

“ When a statute is adjudged to be unconstitu­
tional, it is as if it had never been. Rights cannot be 
built up under it; contracts which depend upon it for 
their consideration are void; it constitutes a protection 
to no one who has acted under it, and no one can be 
punished for having refused obedience to it befoi’e the 
decision was made.”  (Italics ours.)

16 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 17

Plaintiff, whilst saying that there was no registration law 
operative within the State of Oklahoma, sues the defendant 
registrar for alleged failure to conform to the statutes and 
do for the plaintiff a vain thing, which plaintiff himself as­
serts would have been void. The underlying reason for 
denying plaintiff the right to both assert that a statute is 
void and rely upon it in the same proceeding, is manifestly 
sound. But few attempts have been made in federal courts 
to do the unreasonable and impossible thing which plaintiff 
undertakes. Hence, there are not many federal cases an­
nouncing the rule, though there are many state decisions 
which support it.

The decision in Hurley v. Commission of Fisheries of 
Virginia, 257 U. S. 223, 66 L. ed. 206, is grounded upon 
the same principle that controlled in Giles v. Harris, supra. 
Appellant Hurley applied for an injunction to restrain the 
Commission of Fisheries from removing the stakes and 
marks which designated the boundaries of certain oyster 
grounds in the Rappahannock River, planted by appellant, 
and which he claimed the right to occupy, and thereby open­
ing the grounds for public use. The appellant asserted that 
the Commission was proceeding under a state statute in­
valid because it failed to provide for proper notice and hear­
ing, and that the proposed action of the Commission would 
deprive appellant of his property without due process of 
law, contrary to the Fourteenth Amendment. This Court 
held that the appellant had no right to injunction, because 
his action was necessarily based upon a statute under which 
the Commission was acting, and that the appellant could 
not in the same proceeding both assail the statute and rely 
upon it. The opinion is in part as follows:

“ A majority of the three judges composing the 
court below concluded (264 Fed. 116) that the Commis­
sion had acted in substantial compliance with the chal­



lenged statute, that whatever rights of property ap­
pellant claimed in respect of the specified lands, or the 
oysters thereon, were necessarily based upon the stat­
ute itself, and that he could not both assail it and rely 
upon it in the same proceeding (Kansas City, M. &
B. R. Co. v. Stiles, 242 U. S, i l l ,  117, 61 L. ed. 176, 
186, 37 Sup. Ct. Rep. 58). * * * We find no reason to 
interfere with this decree and it is affirmed.”  (Italics 
ours.)

In order to show beyond doubt that plaintiff is in an 
impossible position and within the rule here under discus­
sion, we now refer to or quote, either in whole or in part, 
from the record, the following: Plaintiff’s petition, parts 
of the trial proceedings below whereby plaintiff committed 
himself to a fixed theory, part of the assignments of error, 
parts of petitioner’s brief, the Fourteenth and Fifteenth 
amendments to the Constitution of the United States, that 
part of the Oklahoma Constitution invoked by plaintiff, 
statutory provisions under which plaintiff undertakes his 
suit, and the Oklahoma provision for the registration of 
voters.

The petition alleges:
At page 1 of the record:

“  * * * that this action involves a federal question, name­
ly, the right of suffrage of plaintiff under the Consti­
tution of the United States, the Fourteenth and Fif­
teenth Amendments thereto, and the laws of the United 
States enacted pursuant thereto.”

And at page 2 of the record:
“ 5. That under the laws of the State of Okla­

homa (Section 5652, Okla. Stat. 1931), registration is 
a prerequisite to the right of the citizens of said State 
to vote in any election held in said state, and unless 
and until said plaintiff is registered, as provided by

1 8  I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 19

the said laws of Oklahoma, the said plaintiff will not 
be entitled to vote at any election held in the State of 
Oklahoma, and in said County and Precinct.”

And at page 3 of the record:
“ 7. That such a denial of the right of said plain­

tiff to vote at said election for said Representatives to 
the Congress and for said State and County officers, 
will constitute to plaintiff a denial of the right of suf­
frage as a citizen of said County and State and of the 
United States, and will constitute to plaintiff a denial 
of the equal protection of the laws, contrary to the Con­
stitution and laws of the State of Oklahoma, and con­
trary to the Constitution of the United States, the 
Fourteenth and Fifteenth Amendments thereto and to 
the laws of the United States enacted pursuant there­
to.”

And at page 4 of the record:
“ 11. That the respective registrars in said Coun­

ty and precincts, during the registration period in 
May, 1916, and of all subsequent registration periods 
respectively, informed said plaintiff, that they had no 
authority or instructions to register any Negroes; and 
the registrars of said precincts during each and all of 
said registration periods refused to register any Ne­
groes including this plaintiff, solely on account of their 
race, color and previous condition of servitude.”

At paragraphs 12, 13 and 14 (R. 4-6), the petition al­
leges a conspiracy upon the part of the defendants to de­
prive the plaintiff of his right to register and vote.

At paragraphs 15, 16, 17 and 18 (R. 6-7), the petition 
alleges:

“ 15. That pursuant to the laws of the State of 
Oklahoma, the registration period for the aforemen­
tioned election of November 6, 1934, began on October 
17, 1934, and closed on the 26th day of October, 1934.



20 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

That on the 24th day of October, 1934, this plaintiff, 
I. W. Lane, being then a duly qualified elector of said 
precinct, county and state aforesaid, duly presented 
himself to the defendant, Marion Parks, precinct reg­
istrar aforesaid, and at said time, this said plaintiff 
made application to said defendant, Marion Parks, 
for registration and for a registration certificate, which 
said registration and registration certificate said Mar­
ion Parks refused said plaintiff solely on account of 
the race, color and previous condition of servitude of 
plaintiff; and at said time said Marion Parks, precinct 
registrar aforesaid, advised this plaintiff that he had 
been forbidden by said John Moss, County Judge of 
Wagoner County, Oklahoma, and by Jess Wilson, 
County Registrar of Wagoner County, Oklahoma, to 
register any Negroes.

“ 16. Further, that in refusing to register this 
plaintiff, as set forth above, and in making it impos­
sible for plaintiff to register and to vote in the afore­
mentioned election, said defendants were acting pur­
suant to the aforementioned conspiracy; said defend­
ants, and each of them, were and are violating the 
rights of plaintiff, under the Constitution of Oklahoma, 
and under the Constitution of the United States, the 
14th and 15th amendments thereto, and the laws of 
the United States enacted pursuant thereto.

“ 17. Further, the illegal acts of the defendants 
Jess Wilson, John Moss and Marion Parks herein­
above alleged, constitutes a violation of Section 31, 
Chapter 2 of Title 8 of United States Code (R. S. Sec. 
2004). That in the violation of the rights of said plain- 
itff, said defendants, and each of them, were acting 
under color of certain statutes of the State of Okla­
homa hereinafter mentioned, and under color of cus­
tom and usage in said County of Wagoner and State 
of Oklahoma, and caused said plaintiff to be deprived 
of rights, privileges, and immunities secured by the 
Constitution and laws of the United States.



B r i e f  o f  R e s p o n d e n t s . 21

“ 18. Further, that in the illegal acts hereinabove 
complained of, said defendants and each of them were 
acting under the color of Chapter 29 of the Oklahoma 
Statutes of 1931, and especially under color of Article 
3 of said chapter, and under color of Section 5654 of 
said Article 3, Chapter 29 of said laws of Oklahoma, 
1931, and Section 5657 of said Article and Chapter. 
That said Section 5654, Article 3, Chapter 29 (C. 0. 
S. 1921, Sec. 6252), provides as follows:”
(Here the petition sets forth, by copy, the vital parts 
of the Oklahoma registration statutes.)

Paragraph 19 of the petition (R. 9-10) is as follows:
“ 19. Further, plaintiff alleges, upon information 

and belief, that the above mentioned Section 5654, 
Okla. Stat. 1931 (C. 0. S. 1921, Sec. 6252), and Sec, 
5657, Okla. Stat. 1931 (C. 0. S. 1921, Sec. 6255) are 
mere subterfuges aimed exclusively and directly at and 
against Negro citizens of the United States residing 
in the State of Oklahoma, and further that said laws 
are and were designed for the exclusive purpose of 
depriving said Negro citizens of the right of suffrage, 
and in violation of Section 6, Article 1 of the Consti­
tution of Oklahoma and also in violation of the 15th 
Amendment of the Constitution of the United States, 
and in violation of the laws of the United States en­
acted pursuant thereto. Said statutes and laws are fur­
ther an illegal and cunning attempt to achieve the il­
legal purpose sought by ‘ (The Amendment) Section 
4a, Grandfather Clause of Article iii of the Constitution 
of Oklahoma, and to evade the effect of the decision of 
the Supreme Court of the United States ‘ ( Guinn v. 
United States’, decided June 21st, 1915, 238 U. S, 347, 
59 L. ed. 1340.) That said State Statutes designated for 
the purpose aforesaid were enacted on February 26, 
1916, immediately after the above mentioned decision 
of the Supreme Court of the United States; and said 
laws provide for an unjust, unreasonable and illegal 
classification of the electors of the United States and of



22 I .  W .  L a n e  v . J e s s  W i l s o n ,  e t  a l .

the State of Oklahoma; they give to precinct registrars 
therein provided for an arbitrary and capricious dis­
cretion to deny or refuse qualified Negro electors the 
right of suffrage; and said State laws deny and abridge 
the right of Negro citizens, including this plaintiff, to 
vote, solely on account of race, color and previous 
condition of servitude. That precinct registrars of 
Oklahoma in general in denying the right to register 
and the right of suffrage throughout said State of 
Oklahoma, and the defendants hereinabove named in 
denying and refusing to permit this plaintiff to register 
or to vote, as hereinabove specified, were and are car­
rying out the patent and expressed intent and design 
of said State laws.”

At paragraph 20 of the petition (it. 10) plaintiff 
charges that the alleged conspiracy concocted by defend­
ants, and the illegal acts of the defendants, actually dam­
aged plaintiff in the sum of $5000.00, and that he should 
recover an additional $5000.00 as punitive damages.

Plaintiff’s requested instructions, particularly Nos. 3 
and 4 (R. 53-56), asked for charges to the jury that the 
Oklahoma registration statutes are void, in that said stat­
utes deny the plaintiff due process of law and discriminate 
between white persons and negroes.

In the Assignments of Error, sections II, III, and IV 
(R. 79-80), it is alleged that the Oklahoma registration 
statutes are unconstitutional and void, and that the court 
erred in holding same constitutional. Said Sec. II is in part 
as follows:

“ * * * and the trial court erred in holding and instruct­
ing the jury in said cause that said Registration Laws 
were valid and not unconstitutional, to all of which 
plaintiff duly objected and excepted.”

Section III of the assignments is as follows:



B k i e e  o f  R e s p o n d e n t s . 23

“ It appearing from the face of the Oklahoma 
Registration Laws of 1916 (0. S. 1931, Sec. 5654), 
that said law is an attempted revitalization of the il­
legal Grandfather Clause, Art. Ill, Sec. 4a, Oklahoma 
Constitution, Sec. 13450, 0. S. 1931; or the same in­
valid law in a new disguise of words, and having the 
same discriminatory and unconstitutional intent, op­
eration, and effect, being violative of the 15th Article 
of Amendment to the Constitution of the United States, 
the Honorable trial court erred in holding and adjudg­
ing, and in instructing the jury in said cause that said 
laws were and are valid and not unconstitutional, to 
which plaintiff duly objected and excepted.”

Section IV of the assignments reads thus:
“ The said Registration Laws of the State of 

Oklahoma (0. S. 1931, Sec. 5654), as made and en­
forced by the State, abridge the privileges and immun­
ities of plaintiff Lane and of other citizens of the 
United States of his color and similarly situated, de­
prives them of liberty and property without due pro­
cess of law, and denies them the equal protection of 
the laws; said Registration Laws are violative of the 
14th Article of Amendment to the Constitution of the 
United States. The trial court erred in holding, ad­
judging and in instructing the jury upon the trial of 
said cause that said laws were valid and not violative 
of the said 14th Amendment.”

The following appears in petitioner’s brief at page 7:
“ In the trial court petitioner Lane, as plaintiff, sought 

of the defendants Five Thousand Dollars ($5000.00) 
actual damages and Five Thousand Dollars ($5000.00) 
punitive damages for and on account of alleged de­
privation of his right to register as an elector and, 
correlativelv, of the right to vote, in violation of the 
Fourteenth and Fifteenth Articles of Amendment to 
the Constitution of the United States and of Federal 
laws enacted pursuant thereto, and under color of cer­



tain laws and statutes of tlie State of Oklahoma, al­
leged to be unconstitutional and void as violative of 
said Fourteenth and Fifteenth Amendments.”

Commencing at page 42 of petitioner’s brief, this lan­
guage appears:

“ The heart and essence of said registration laws, so 
far as the present question of constitutionality is con­
cerned, is embodied in Sec. .5654, 0. S. 1931, set forth 
in full in this brief at page 5, and this entire contro­
versy centers around the question whether said Sec. 
5654 is unconstitutional, as violating the 14th and 15th 
Amendments to the Constitution of the United States, 
and further, whether said section is an unwarranted 
and unconstitutional (under the state Constitution) re­
striction of the qualification of an elector, as provided 
by Section 1, Article III of the State Constitution.” 
(Italics ours.)

At various other places in the record and in petition­
er’s brief it appears that what plaintiff is really trying to 
do is to recover damages for alleged non-compliance upon 
the part of the precinct registrar with state statutes which 
plaintiff vigorously alleges to be unconstitutional and void. 
Throughout the whole proceeding, and with respect to a 
single cause of action, plaintiff has both asserted that the 
Oklahoma registration statutes are void, whilst undertaking 
to rely upon them.

For the convenience of the Court we here copy from 
the Oklahoma Statutes, 1931, the vital parts of the regis­
tration laws, italicizing for emphasis that part of the stat­
utes which the plaintiff contends makes the whole scheme 
void:

S e c . 5652. “ It shall be the duty of every quali­
fied elector in this state to register as an elector under 
the provisions of this Act, and no elector shall be per­
mitted to vote at any election unless he shall register

24 I . W .  L a n e  v . J e s s  W i l s o n ,  e t  a l .



B b i e f  o p  R e s p o n d e n t s . 25

as herein provided, and no elector shall be permitted 
to vote in any primary election of any political party 
except of the political party of which his registration 
certificate shows him to be a member.”

S e c . 5654. “ It shall be the duty of the precinct 
registrar to register each qualified elector of his elec­
tion precinct who makes application between the thir­
tieth day of April, 1916, and the eleventh day of May, 
1916, and such person applying shall at the time he 
applies to register be a qualified elector in such pre­
cinct and he shall comply with the provisions of this 
act, and it shall be the duty of every qualified elector 
to register within such time; provided, if any elector 
should be absent from the county of his residence dur­
ing such period of time, or is prevented by'sickness 
or unavoidable misfortune from registering with the 
precinct registrar within such time, he may register 
with such precinct registrar at any time after the tenth 
day of May, 1916, up to and including the thirtieth 
day of June, 1916, but the precinct registrar shall reg­
ister no person under this provision unless he be sat­
isfied that such person was absent from the county 
or was prevented from registering by sickness or un­
avoidable misfortune, as hereinbefore provided. And 
provided that it shall he the mandatory duty of every 
precinct registrar to issue registration certificates to 
evgry qualified elector who voted at the general elec­
tion held in this state on the first Tuesday after the 
first Monday in November, 1914, without the appli­
cation of said elector for registration, and, to deliver 
such certificate to such elector if he is still a qualified 
elector in such precinct and the failure to so register 
such elector who voted in such election held in Novem­
ber, 1914, shall not preclude or prevent such elector 
from voting in any election in this state; and provid­
ed further, that wherever any elector is refused reg­
istration 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 pe-



26 I .  W .  L ane v . Jess W i l s o n ,  e t  a l .

tition with the clerk of said court, whereupon summons 
shall be issued to said registrar requiring him to an­
swer within ten days, and the District Court shall he 
a expeditious hearing and from his judgment an ap­
peal will lie at the instance of either party to the Su­
preme Court of the State as in civil cases; and pro­
vided further, that the provisions of this act shall not 
apply to any school district elections. Provided fur­
ther, that each county election board in this state shall 
furnish to each precinct election board in the respec­
tive counties a list of the voters who voted at the elec­
tion in November, 1914, and such list shall be conclu­
sive evidence of the right of such person to vote.” 
(Italics ours.)

Sec. 5657, so far as material here, is this:
“ Each qualified elector in this State may be re­

quired to make oath that he is a qualified elector in 
such precinct, and shall answer under oath any ques­
tions touching his qualifications as an elector and give 
under oath the information required to be contained 
in a registration certificate. Except in the case of a 
qualified elector who voted at the general election held 
in this state on the first Tuesday after the first Monday 
in November, 1914, in which case it shall be the manda­
tory duty of the precinct registrar to register such 
voter and deliver to such voter a registration certificate 
and the failure to so register such elector and to issue 
such certificate shall not preclude or prevent such elec­
tor from voting at any election in this State. If any 
person shall fail or refuse to give the information re­
quired in a registration certificate, or fail or refuse 
to answer any questions propounded to him by said 
registrar touching his qualifications as an elector, such 
person shall not be registered and no certificate of reg­
istration shall be issued to him. If said registrar shall 
be satisfied that any person who makes application to 
register is a qualified elector in the precinct at such 
time, and if such person complies with all of the pro­



B r i e f  o f  R e s p o n d e n t s . 27

visions of this act, then said registrar shall detach the 
original registration certificate, properly filled in and 
containing the information required in this act, and de­
liver to such person such original registration certifi­
cate. * * *”  (Italics ours.)

We admit, as claimed by petitioner, that if the above 
italicized and emphasized parts of sections 5654 and 5657, 
providing for mandatory registration of those qualified 
electors who voted in 1914, are void, the whole registration 
scheme falls. Under our Proposition II authorities upon 
this point are cited.

This Court is of course familiar with that part of the 
Fourteenth Amendment to the United States Constitution 
upon which plaintiff relies, and with the Fifteenth Amend­
ment to the United States Constitution. They here follow, 
for the convenience of counsel.

Section 1 of the Fourteenth Amendment is in part as 
follows:

“ * * * No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of 
the United States, nor shall any State deprive any per­
son of life, liberty, or property, without due process 
of law; nor deny to any person within its jurisdiction 
the equal protection of the laws.”

The Fifteenth Amendment is this:
“ Section 1. The right of citizens of the United 

States to vote shall not be denied or abridged by the 
United States or by any State on account of race, color, 
or previous condition of servitude.

“ Sec. 2. The Congress shall have power to en­
force this article by appropriate legislation.”

In furtherance of Sec. 2 of the Fifteenth Amendment, 
the Congress enacted Sec. 1979 of the Revised Statutes 
(Sec. 43, Title 8, U. S. Code Annotated), which is as follows:



“ Every person who, under color of any statute, 
ordinance, regulation, custom, or usage, of any State 
or Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an ac­
tion at law, suit in equity, or other proper proceeding 
for redress.”

The above is the section under which plaintiff sues. It 
gives a right of action against officers for enforcing a void 
statute and thereby depriving one of a right under color of 
a void law. It has no application except where the action 
is based upon a wrong by an officer committed in the course 
of the enforcement and in the pursuance of a void state 
statute. In Myers v. Anderson, 238 U. S. 366, 59 L. ed. 1349, 
this Court held that “ the enforcement of a state law is of 
itself the wrong which gives rise to the cause of action” . 
This Sec. 1979 applies in an election case only when a void 
state law commands the election officials to deprive an elec­
tor of his right to vote. It was doubtless enacted primarily 
for the purpose of foreclosing officials from a complete de­
fense by showing good faith and want of malice. Independ­
ent of statutory authority, all persons have the common- 
law right of action for deprivation of rights guaranteed 
by the Constitution. In a common-law action for depriva­
tion of constitutional rights in the course of administra­
tion of void statutes, good faith and want of malice is a de­
fense. Under Sec. 1979 officers are held bound to know the 
law, and they are required to disregard void statutes. In 
the instant case the defendant registrar was required to 
disregard and not act under the registration statutes, if 
they are void.

Plaintiff seems to rely somewhat upon Sec. 2004 of the

28 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B e i e f  o f  R e s p o n d e n t s . 29

Revised Statutes (Sec. 31, Title 8, IT. S. Code Annotated), 
which is as follows:

“ All citizens of the United States who are other­
wise qualified by law to vote at any election hv the 
people in any State, Territory, district, county, city, 
parish, township, school district, municipality, or other 
territorial subdivision, shall be entitled and allowed 
to vote at all such elections, without distinction of race, 
color, or previous condition of servitude; any consti­
tution, law, custom, usage, or regulation of any State 
or Territory, or by or under its authority, to the con­
trary notwithstanding. ’ ’

This section does not provide any right of action. It merely 
declares a substantive right theretofore existing; It does 
not in itself provide any remedy for the infringement of 
a declared right, and hence it is without importance in 
this case.

In brief summary, plaintiff’s case is this: He claims 
the right of registration under statutes alleged to be void. 
He asserts that the registration laws of Oklahoma are void, 
and in the same proceeding and in a single cause of action, 
he claims damages because the defendant registrar did 
not add plaintiff’s name to the registration lists, asserted 
to be void. He asks for that which Justice H olmes in Giles 
v. Harris, supra, called a naked declaration in the air. Un­
der this proposition wTe are asking that this Court do pre­
cisely what it did in Giles v. Harris, and hold the plaintiff 
to his own theory and deny him any relief, because he can­
not both assert the invalidity of the statutes in question, 
and sue in damages for non-compliance with the alleged 
void registration statutes.

The petitioner undertakes to meet the contention above 
made by invoking Myers v. Anderson, 238 U. S. 368, 59 
L. ed. 1349. We shall show hereinafter that Myers v. An­



3 0  I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

derson was an entirely different case from that here pre­

fix) ti at, which.. thn.-pJainti.ffs were entitled to vote, and were- 
w-rcmgfully, denied the right, of suffrage. But here the prin­
cipal defendant was a mere registration officer, with no 
duties to perform on any election date. Beside, by plain­
tiff’s own theory, which is that the Oklahoma Registration 
Law is void, plaintiff had the right to vote without regis­
tration. 7/ plaintiff’s theory is correct and if he applied for 
registration in 1916, he should have presented himself at 
the polls and there demanded the right of suffrage. Had he 
done so, and had the officials at the polls denied his right 
to vote, then he ivotdd have had a right of action against 
the election officials who prevented his voting, if the Reg­
istration Law is void. In the petitioner’s brief an effort 
is made to anticipate this argument by saying that Okla­
homa has a criminal statute forbidding an unregistered 
person to vote or offer to vote at an election. If the Regis­
tration Law is void, it is manifest that this statute is void 
and inoperative. We think it safe to say that there is no 
reported case sustaining the view that a registration of­
ficer may be sued in damages for failure to register an ap­
plicant under a void Registration Law, and we submit that 
this view is utterly absurd.

The case of Nixon v. Herndon, 273 U. S. 537, 71 L. 
ed. 759, cited by petitioner, likewise fails to support him. 
There the action was against the judges officiating at the 
polls, for wrongfully refusing the right of suffrage. If the 
Oklahoma Registration Law is void, it must be conceded 
that if the defendant Registrar had registered the plaintiff, 
Lane, the act of registration and the certificate in evidence 
thereof would have had no force or effect whatsoever. The 
defendant Registrar is sued, according to the plaintiff’s 
own theory, for failure to do a vain thing. The defendants



B k i e f  o f  R e s p o n d e n t s . 31

other than Parks are sued as alleged conspirators conspir­
ing with Parks to prevent the registration of Lane and other 
negroes. Plaintiff’s pretended case, and the theory pre­
sented in support thereof, are not only without precedent 
in the reported cases, hut without any support in reason.

It seems apparent that there is no federal question 
here presented for decision. The federal courts should not 
have assumed jurisdiction of the case, since no cause of 
action is stated necessarily involving a federal question. 
The rule that a federal court cannot pass upon a constitu­
tional question unless presented in a justiciable controversy 
is too well known to require citation of authority. The plain­
tiff has failed to state a justiciable controversy such as to 
require decision of this Court upon the constitutional ques­
tions sought to be presented.

I I .
Myers v. Anderson, 238 U. S. 368, 59 L. ed. 1349, upon 

which plaintiff relies, does not support the contention that 
plaintiff can proceed against the registration officer. In fact, 
the doctrine announced in M yers v. Anderson  affirmatively 
supports the contention that plaintiff cannot sue the regis­
tration officer in this case.

For these further and additional reasons plaintiff has 
not stated or made a case.

Myers v. Anderson, in no way supports the plaintiff 
upon the point. The case arose in Maryland and was prose­
cuted successfully against a registrar. In 1896 the Maryland 
Legislature enacted a valid general election law applicable 
to all parts of the state, and to every precinct thereof, and 
every qualified elector. Under this general valid registra­
tion law every qualified elector had to register, and none 
could vote without registration. Later, in 1908, a special



act was passed by the Legislature to fix the qualifications 
of voters at municipal elections in the City of Annapolis, 
and to provide for the registration of said voters in the 
city. The defendant registrar, acting under this special act, 
refused plaintiff registration. The suit was brought against 
the registration officer for denial of the right of registration. 
The action was sustained, because of said refusal. The 
void act of 1908 purported to require the registrar defend­
ant to refuse the plaintiff registration. The denial was sole­
ly because of the terms of the void 1908 act. When the 1908 
act was stricken down there still remained the valid prior 
act of 1896, which made registration necessary to vote. The 
situation, in brief, was this: The registration officer should 
have registered the plaintiff under the still eomsting valid 
law of 1896, and should have disregarded the void law of 
1908. The situation here is wholly unlike that. In referring 
to the 1896 valid registration law this Court said:

“ In 1896 a general election law comprising many sec­
tions was enacted in Maryland. Laws of 1896, Chap. 
202, p. 327. It is sufficient to say that it provided for a 
board of supervisors of elections in each county to be 
appointed by the governor, and that this board was 
given the power to appoint two persons as registering 
officers and two as judges of election for each election 
precinct or ward in the county. Under this law each 
ward or voting precinct in Annapolis became entitled 
to two registering officers.”

After holding void the special act of 1908 applicable to 
Annapolis, this Court proceeded to make it clear that the 
defendant registrar should have registered the plaintiff 
under the still existing and valid act of 1896, saying:

“ The qualification of voters under the Constitution of 
Maryland existed and the statute which previously pro­
vided for the registration and election in Annapolis 
was unaffected by the void provisions of the statute

32 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B b ie f  o f  R e s p o n d e n t s . 33

which we are considering. The mere change in some 
respects of the administrative machinery by the new 
statute did not relieve the new officers of their duty, 
nor did it interpose a shield to prevent the operation 
upon them of the provisions of the Constitution of the 
United States and the statutes passed in pursuance 
thereof.”  (Italics ours.)

Thus having held that the plaintiff was entitled to reg­
istration under the 1896 act, that the defendant registrar 
should have registered him, and that by denial of his right 
of registration the plaintiff had been deprived of the right 
to vote, this Court concluded that the defendant registrar 
was properly sued. But here what the plaintiff Lane is 
really saying is that the Oklahoma registration law was 
utterly void, that there was no provision whatever for 
registering the plaintiff in 1934, and that notwithstanding 
the absence of any statutory requirement for plaintiff’s reg­
istration, he is entitled to sue the defendant registrar in 
damages for failure of registration. Thus plaintiff reduces 
his claim to absurdity absolute.

We concede the contention of petitioner that if the 
statutory provisions making it mandatory to register in 
1916 all qualified electors who had voted in the 1914 gen­
eral election are void, the whole of the state registration 
scheme is void, for the reasons set forth in Myers v. An­
derson, and upon the grounds named by Judge Cooley, to 
which reference will be made directly.

In Myers v. Anderson this Court, having held that one 
of the standards set up by the Annapolis registration law 
was void, then considered whether or not the whole of the 
act would be overthrown. The discussion upon the point 
is as follows:

“ In the Guinn case this subject was also passed 
upon and it was held that albeit the decision of the



34 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

question was, in the very nature of things a state one, 
nevertheless, in the absence of controlling state rul­
ings, it was our duty to pass upon the subject and that 
in doing so the overthrow of an illegal standard would 
not give rise to the destruction of a legal one unless 
such result was compelled by one or both of the fol­
lowing conditions: (a) Where the provision as a whole 
plainly and expressly established the dependency of 
the one standard upon the other, and therefore ren­
dered it necessary to conclude that both must disappear 
as the result of the destruction of either; and  (b) 
where, even although there was no express ground for 
reaching the conclusion just stated, nevertheless that 
view might result from an overwhelming implication 
consequent upon the condition which would be created 
by holding that the disappearance of the one did not 
prevent the survival of the other; that is, a condition 
which would be so unusual, so extreme, so incongruous 
as to leave no possible ground for the conclusion that 
the death of the one had not also carried with it the 
cessation of the life of the other.

“ That both of these exceptions here obtain we 
think is clear. ’ ’

In Cooley’s Constitutional Limitations, Sixth Edition, 
commencing at page 209, under the caption ‘ ‘ Statutes Un­
constitutional in Part’ ’ , the author said:

“ It will sometimes be found that an act of the 
legislature is opposed in some of its provisions to the 
constitution, w h i l e  others, standing by themselves, 
would be unobjectionable. So the forms observed in 
passing it may be sufficient for some of the purposes 
sought to be accomplished by it, but insufficient for 
others. In any such case the portion which conflicts 
with the constitution, or in regard to which the nec­
essary conditions have not been observed, must be 
treated as a nullity. Whether the other parts of the 
statute must also be adjudged void because of the as-



B r i e f  o f  R e s p o n d e n t s . 35

sociation must depend upon a consideration of the 
object of the law, and in what manner and to what ex­
tent the unconstitutional portion affects the remainder. 
A statute, it has been said, is judicially held to be un­
constitutional, because it is not within the scope of leg­
islative authority; it may either propose to accom­
plish something prohibited by the constitution, or to 
accomplish some lawful, and even laudable object, by 
means repugnant to the Constitution of the United 
States or of the State. A  statute may contain some such 
provisions, and yet the same act, having received the 
sanction of all branches of the legislature, and being in 
the form of law, may contain other useful and salu­
tary provisions, not obnoxious to any just constitu­
tional exception. It would be inconsistent with all just 
principles of constitutional law to adjudge these enact­
ments void because they are associated in the same act, 
but not connected with or dependent on others which 
are unconstitutional. Where, therefore, a part of a 
statute is unconstitutional, that fact does not author­
ize the courts to declare the remainder void also, un­
less all the provisions are connected in subject-matter, 
depending on each other, operating together for the 
same purpose, or otherwise so connected together in 
meaning, that it cannot be presumed the legislature 
would have passed the one without the other. The con­
stitutional and unconstitutional provisions may even 
be contained in the same section, and yet be perfectly 
distinct and separable, so that  the first may stand 
though the last fall. The point is not whether they are 
contained in the same section; for the distribution into 
sections is purely artificial; but whether they are es­
sentially and inseparably connected in substance. If, 
when the unconstitutional portion is stricken out, that 
which remains complete in itself, and capable of being 
executed, in accordance with the apparent legislative 
intent, wholly independent of that which was rejected, 
it must be sustained. The difficulty is in determining 
whether the good and bad parts of the statute are cap-



able of being separated within the meaning of this rule. 
If a statute attempts to accomplish two or more ob­
jects, and is void as to one, it may still be in every re­
spect complete and valid as to the other. But if its pur­
pose is to accomplish a single object only, and some 
of its provisions are void, the whole must fail unless 
sufficient remains to effect the object without the aid of 
the invalid portion. And if they are so mutually con­
nected with and dependent on each other, as conditions, 
considerations, or compensations for each other, as to 
warrant the 'belief that the legislature intended them as 
a whole, and if all could not be carried into effect the 
legislature would not pass the residue independently, 
then if some parts are unconstitutional, all the provi­
sions which are thus dependent, conditioned, or con­
nected must fall with them.”  (Italics ours.)

I I I .
Regardless of whether or not the registration law of 

Oklahoma is valid; and if valid, regardless of whether or 
not it was properly administered, it cannot be held that 
plaintiff sustained any actionable injury or that he was 
denied any constitutional right.

First. Let it be assumed solely and only for the pur­
pose of argument that the Begistration Statutes of Ok­
lahoma are void: If the Begistration Statutes are void, 
there was no authority for anybody to register the plaintiff 
at any time. According to plaintiff’s own theory, Parks 
is sued for failure to do that which he had no authority to 
do. Plaintiff claims damages for want of a registration cer­
tificate, whilst contending in fact that if he had such cer­
tificate the same would be utterly void.

Second. Take the Oklahoma Begistration Law as valid: 
It is manifest that plaintiff cannot recover for three rea­
sons; namely: (1) Because under the Oklahoma Begistra-

36 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 37

tion Law there is no provision by which Parks, as regis­
tration officer in 1934, could register the plaintiff, Lane, 
or any person similarly situated. This will fully appear 
hereinafter. (2) Because Lane did not apply to the precinct 
registrar of his precinct in 1916, during the period for gen­
eral and permanent registration throughout the State, 
and the plaintiff did not undertake to bring himself within 
any of the exceptions provided by the Registration Law for 
registration of then qualified voters at a date, or dates 
subsequent to the 1916 registration. Plaintiff’s own evi­
dence shows this to be true. Lane and his supporting wit­
nesses claimed that in 1916 he applied for registration to 
one Workman, who was not precinct registrar until 1920. 
The public records of Wagoner County, Oklahoma, where 
the plaintiff, Lane, lives, and where the alleged cause of 
action arose, show that one Pace was the registrar in 1916, 
rather than Workman. The Circuit Court of Appeals found 
Lane failed to apply, as he should have done, in 1916, for 
registration. The evidence upon these points will be dis­
cussed later. (3) There is a further insuperable barrier 
against recovery, because if, in fact, Lane did apply in 
1916 for permanent registration, which was the proper 
time for his application, and was denied registration, he 
had to appeal from the registrar’s adverse decision through 
the courts, as provided by the Registration Statutes. He 
did not appeal.



38 I. W . L ane y . J ess W ilson , et al. 

IY .
Plaintiff was required to apply for registration in 1916. 

Let us here assume, for the sake of argument, that he did 
in fact, as alleged, make proper application in 1916, and 
that same was wrongfully denied, and for the purpose of 
argument only, bar from consideration the rule already 
discussed under our Proposition I, that a plaintiff cannot 
in the same proceeding both assert the invalidity of statutes 
and rely upon them; still the plaintiff cannot recover, be­
cause he did not appeal from the wrongful decision, and 
thereby failed to exhaust his remedies provided by the Reg­
istration Statutes. For this additional reason the plaintiff 
has failed to state or make a case.

Sec. 5654, 0. S. 1931, provides for appeal from an ad­
verse holding by a registrar, as follows:

“ * * * 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 re­
quiring him to answer within ten days, and the Dis­
trict Court shall be a 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; * * * ”

It is admitted that plaintiff made no effort to appeal. 
Plaintiff further admits that prior to his application for 
registration in 1934 he had been duly advised of this rem­
edy. The plaintiff Lane and others had prosecuted an action 
in the United States District Court for the Eastern District 
of Oklahoma before Judge Robert L. Williams, for fail­
ure of registration. The plaintiff Lane was then upon the 
witness stand. The question was under consideration as to



B r i e f  o f  R e s p o n d e n t s . 39

how Lane and others similarly situated could be registered. 
Judge Williams pointed out to Lane and the other com­
plaining parties there present and participating in the trial 
that in cases where qualified electors applied to a precinct 
registrar for registration, and were wrongfully denied, 
their remedy was by appeal, and Judge Williams at that 
time read to Lane and the other parties to the action the 
foregoing statutory provision authorizing appeal (R. 30). 
It is admitted, therefore, that the failure of the plaintiff to 
appeal in 1934 was deliberate, with full knowledge of the 
right of appeal. He undertakes to explain his failure to 
appeal to the state District Court, saying that he chose to 
“ appeal”  by this original action (R. 30).

This precise question was involved in Trudeau v. 
Barnes, 1 Fed. Sup. 453, 65 Fed. (2d) 563 (5th Circuit), 
290 U. S. 659, 78 L. ed. 571, and it was there held that a 
qualified elector cannot sue for damages if he failed to 
exhaust his statutory remedies by appeal from the adverse 
ruling of a registration officer. The method of appeal was 
the same as that here involved. The action for damages, 
just as in the instant case, was brought under Sec. 1979 
of the Revised Statutes (8 U. S. C. A., Sec. 43). An extended 
statement of the case is found in the decision of the lower 
court, 1 Fed. Sup. 453. It is there stated by Judge Borah:

‘ ‘ This is an action at law brought pursuant to the 
provisions of title 8 U. S. C. A., Sec. 43, wherein the 
plaintiff, Antoine M. Trudeau, a colored man and a 
member of the Negro race, is seeking to recover dam­
ages against Charles S. Barnes, registrar of voters 
for the parish of Orleans, for alleged deprivation of 
the civil right to register as a voter in elections.

“ The petition is divided i n t o  two alternative 
causes of action, both having as their bases the same 
alleged state of facts. Pretermitting the arguments 
of law and conclusions to which the petition is largely



40 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

devoted, the pertinent allegations of fact are that on 
June 18, 1931, Trudeau applied for registration, and 
was furnished with a registration blank form, and was 
requested to fill it out in his own writing with his name, 
place and date of birth, age, ward, residence, and 
all other data required thereon; that he duly and cor­
rectly filled out all the blanks on the said form in his 
own handwriting, and returned the form to the said 
Charles S. Barnes, registrar, who then demanded that 
petitioner read the paragraph from section 1, article 
8 of the Constitution of the State of Louisiana con­
taining the understanding clause which is as follows: 
‘ Said applicant shall also be able to read any clause 
in this Constitution, or the Constitution of the United 
States, and give a reasonable interpretation thereof’ ; 
and that he explain the meaning of the paragraph; 
that ‘ petitioner correctly read the said section, and 
sought to explain its meaning, but the said Charles 
S. Barnes arbitrarily declared that your petitioner 
had not perfectly understood and explained the mean­
ing thereof, and refused your petitioner the right to 
register’.”

The plaintiff was denied the right to maintain his action 
in damages because he had a plain and adequate remedy 
by appeal. In the course of his opinion the trial judge 
stated:

“ The plaintiff rests his case entirely on two decisions 
of the United States Supreme Court: Guinn & Beal 
v. United States, 238 U. S. 347, 35 S. Ct. 926, 931, 
59 L. ed. 1340, L, B. A. 1916A, 1124; Myers v. Ander­
son, 238 U. S. 368, 35 S. Ct. 932, 935, 59 L. ed. 1349. 
But he evidently misinterprets these decisions, for 
they are clearly distinguishable from the case at bar, 
in that the state laws therein involved were openly 
and on their face discriminatory, and were held to 
be unconstitutional, not on account of their provisions 
as to educational qualifications, but on account of the 
presence therein of so-called ‘ grandfather clauses ;



B r i e f  o f  R e s p o n d e n t s . 41

that is, clauses which make the right to vote dependent 
on conditions existing at a date prior to the adoption 
of the Fifteenth Amendment.”  (Italics ours.)

The decision then makes the point that the ruling of the 
precinct registrar was “ subject to control by review” , and 
that plaintiff could not be heard to complain in an action 
for damages, on account of his failure to appeal.

Upon appeal to the Fifth Circuit, 65 Fed. (2d) 563, 
it was held that one denied registration as a voter, before 
suing for damages under federal statute, must exhaust the 
remedy afforded by the state law. Referring to provision 
for appeal, the Circuit Court said:

“ The same article in section 5 provides that any per­
son possessing the qualifications for voting who may 
be denied registration shall have the right to apply 
for relief to the District Court for the parish in which 
he offers to register; that the court shall then try the 
cause, giving it preference over all other cases, before 
a jury whose verdict shall be final, except that the com­
plaining party is given the right of appeal to the ap­
propriate appellate court.”

In its application of the state law authorizing appeal, and 
in denying the claim of plaintiff for damages, the Circuit 
Court announced the familiar rule that one cannot sue for 
damages without first having fully exhausted the remedies 
provided by law, saying.

“ The Louisiana Constitution protects every citizen who 
desires to register from being arbitrarily denied that 
right by the registrar of voters by giving the appli­
cant a right to apply without delay and without ex­
pense to himself to the trial court for relief, to sub­
mit his qualifications to vote to a jury, and to have 
them finally passed upon by an appellate court. It 
is idle to say that the defendant as registrar had the 
arbitrary power to deny plaintiff the right to vote.



We cannot say, and refuse to assume, that, if the plain­
tiff had pursued the administrative remedy that was 
open to him, he would not have received any relief to 
which he was entitled. At any rate, before going into 
court to sue for damages Tie was bound to exhaust the 
remedy afforded him ‘by the Louisiana Constitution. 
First National Bank of Greeley, Colo. v. Weld County, 
264 U. S. 450, 44 S. Ct. 385, 68 L. ed. 784; First Na­
tional Bank v. Gildart (C. C. A.), 64 F. (2d) 873, 
Fifth Circuit, decided April 22, 1933.”  (Italics ours.)

Trudeau applied to this Court for review of his case. On 
Novembed 6, 1933, certiorari was denied. 290 U. S. 659, 
78 L. ed. 571.

This appears to be the only federal case reported in­
volving this question with respect to the effect of failure 
to appeal from the decision of a registrar. An examina­
tion of the cases cited supra by the Circuit Court shows 
that the general rule applied in cases of failure to exhaust 
one’s statutory remedies by appeal governs in election 
matters.

In First Nat. Bank v. Board of Commrs., 264 U. S. 
450, 68 L. ed. 784, the first case cited supra as supporting 
the rule announced in Trudeau v. Barnes, a taxpayer had 
failed to exhaust the remedies provided for appeal. With 
respect to such situation this Court said:

“ We are met at the threshold of our consideration 
of the case with the contention that the plaintiff did 
not exhaust its remedies before the administrative 
boards, and consequently cannot be heard by a ju­
dicial tribunal to assert the invalidity of the tax. We 
are of opinion that this contention must be upheld.”

Then this Court referred to a Colorado decision, in which 
state the action arose, saying:

42 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 43

“ The Supreme Court of Colorado, in a sui t  
brought by this plaintiff against the county assessor, 
involving the same tax for 1913, and presenting the 
same questions here involved, sustained the refusal 
of a lower court to enjoin the collection of the tax, 
and held: * * * and (d), ‘ with full knowledge of the 
respective powers of these several boards to make cor­
rections in assessments and adjustments in equaliza­
tion, essential to bring about a complete and equitable 
assessment of all property within the state, it remain­
ed inactive until long after the tax was laid, when it 
applied for an abatement or rebate of the tax. The 
aforesaid tribunals were open to plaintiff in error prior 
to the laying of the tax, but it refrained from seeking 
relief therein, and may not now complain.’ First Nat. 
Bank v. Patterson, 65 Colo. 166, 172, 173, 176 Pac. 498.

“ The effect of this is to hold that an administra­
tive remedy was in fact open to plaintiff under the stat­
utes of the state, and 'by this construction, upon well- 
settled principles, we are bound. McGregor v. Hogan, 
decided November 12, 1923, 263 U. S. 234, ante, 282, 
44 Sup. Ct. Rep. 50; Farncomb v. Denver, 252 U. S. 7, 
10, 64 L. ed. 424, 426, 40 Sup. Ct. Rep. 271; Londoner 
v. Denver, 210 U. S. 373, 374, 52 L. ed. 1103, 1107, 28 
Sup. Ct. Rep. 708; Price v. Illinois, 238 U. S. 446, 451, 
59 L. ed. 1400, 1404, 35 Sup. Ct. Rep. 892; Western U. 
Teleg. Co. v. Missouri, 190 U. S. 412, 425, 47 L. ed. 1116, 
1121, 23 Sup. Ct. 730.

“ we cannot assume that, if application had been made 
to the commission proper relief would not have been 
accorded by that body, in view of its statutory author­
ity to receive complaints and examine into all cases 
where it is alleged that property has been fraudu­
lently, improperly, or unfairly assessed. Collins v. 
Keokuk, 118 Iowa 30, 35, 91 N. W. 791. Nor will plain­
tiff be heard to say that there was not adequate time 
for a hearing, in the absence of any effort on its part 
to obtain one. * * * And, accepting the decision of the



44 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

state court that such remedies were, in fact, open and 
available under the Colorado statutes, it could not be 
dispensed with. McGregor v. Hogan, supra; Farn- 
comb v. Denver, 252 U. S. 11, 64 L. ed. 426, 40 Sup. 
Ct. Rep. 271; Stanley v. Albany County, 121 U. S. 535, 
30 L. ed. 1000, 7 Sup. Ct. Rep. 1234; Petoskey Gas Co. 
v. Petosky, 162 Mich. 447, 452,127 N. W. 345; Caledonia 
Twp. v. Rose, 94 Mich. 216, 218, 53 N. W. 927; Hinds 
v. Belvidere Twp., 107 Mich. 664, 667, 65 N. W. 544; 
Ward v. Alsup, 100 Tenn. 619, 746, 46 S. W. 573.

“ Plaintiff not having availed itself of the admin­
istrative remedies afforded by the statutes, as con­
strued by the state court, it results that the question 
whether the tax is vulnerable to the challenge in re­
spect of its validity upon any or all of the grounds set 
forth, is one which we are not called upon to consider.” 
(Italics ours.)

The consideration given to the Colorado case in one 
of the excerpts set forth above invites attention to au­
thoritative statements in Oklahoma with respect to the Ok­
lahoma law authorizing appeal from adverse decisions of 
registration officers.

In Determan v. State, 89 Okl. 242, 244, it was said:
“ In that event, if registration is refused on any 

ground, the whole of section 6252, providing the gen­
eral regulations for registering, including the provi­
sion providing for appeal, is the governing section.”

On April 1, 1922, the Attorney General of the State in 
a written opinion held, in accordance with the well estab­
lished practice in Oklahoma:

‘ ‘ If registrar wrongfully, arbitrarily or capriciously re­
fuses to issue a registration certificate to an elector, 
qualified under the law to receive it, the elector is 
given his remedy by an appeal to the District Court 
of the county in which he resides.”



B r i e f  o f  R e s p o n d e n t s . 45

This opinion of the Attorney General is found in the book­
let printed by the authority of the State Election Board in 
1932, at page 9.

The rule requiring one to exhaust his available stat­
utory remedies before resort to court action appears to be 
uniform and applicable to all sorts of cases.

At the first trial Judge Williams directed a verdict in 
favor of the defendants, relying upon Trudeau v. Barnes 
and other authorities to the same effect. A  new trial was 
granted because plaintiff claimed that Judge Williams was 
disqualified, and he reached the conclusion that in view of 
this challenge he should not enter judgment against plain­
tiff. Judge Mur rah likewise directed a verdict in favor 
of the defendants, as shown by his opinion, relying prin­
cipally upon the doctrine in Trudeau v. Barnes and in the 
cases there cited.

Commencing at page 48 of petitioner’s brief, he seeks 
to distinguish and escape the application of the Trudeau- 
Barnes case, supra, and the cases therein cited, by placing 
the present case in the same class as the Guinn and Myers- 
Anderson cases. But this case cannot be so classified, be­
cause, as has been pointed out, the Guinn and Myers-An- 
derson cases involve provisions which were void and dis­
criminatory on their faces, whereas the Oklahoma Registra­
tion Law of 1916 is not void or discriminatory on its face, 
nor has petitioner ever so contended. And as is hereinafter 
shown, said law of 1916 does not embody the objectionable 
“ Grandfather Clause”  found in the Guinn case. It is only 
in cases where the law involved is void and discriminatory 
on its face, that the person complaining thereof is excused 
from seeking remedy by the appeal provided. Trudeau v. 
Barnes, supra, and cases therein cited.

Bearing in mind the fact that plaintiff’s action is upon



the ground that he was not registered, it is definitely cer­
tain that he cannot recover, having failed to appeal and 
thereby comply with the statutory provisions which provide 
a ready and ample method for review in any case where 
registration is wrongfully denied.

V .
The defendant registrar Parks had no authority to reg­

ister the plaintiff in 1934. The statutes (Sec. 5654) limited 
his authority to register ( 1 )  those who subsequent to the 
next prior registration period had become qualified to vote 
in the precinct, and ( 2 )  those qualified electors who there­
tofore had not been registered because of absence, sickness, 
or other unavoidable misfortune. Plaintiff Lane does not 
claim to belong to either of these classes. For this further 
and additional reason plaintiff has failed to state or make 
a case.

A  careful examination of the statutes, particularly 
said Sec. 5654, will disclose that there was no provision 
whatever authorizing or directing the registrar Parks to 
register any applicants other than those who belonged to 
one of the two classes above mentioned. The first and only 
registration laws ever enacted in Oklahoma are those under 
attack. The scheme, in brief, was this: All qualified elec­
tors of each precinct had to be registered between the 30th 
day of April, 1916, and the 11th day of May, 1916, unless 
prevented by absence, sickness, or unavoidable misfortune. 
If so prevented, electors were given the right to be reg­
istered at the next registration period. Provision was made 
for opening the registration books for further registra­
tion at fixed periods from time to time prior to each gen­
eral election. There is not so much as a word in the law 
showing or tending to show that the defendant Parks had

46 I. W .  L a n e  v . J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 47

any authority whatsoever to register Lane in 1934, the 
date of his alleged denial of the right of registration. There 
was no duty upon the part of Parks, in this absence of stat­
utory authority, to register Lane. In fact section 5654 con­
tains a positive inhibition against registration in 1934 of 
one in Lane’s situation. This point alone seems conclusive 
of the whole matter in favor of the defendants.

V I .
It conclusively appears that in fact plaintiff Lane never 

applied for registration to the 1916 precinct registrar. It 
was so held by the Circuit Court of Appeals (R. 100). There 
is no proof that the 1916 registrar in the precinct where 
plaintiff lived ever refused registration of any colored voter 
who applied to him. There is no evidence that any colored 
voter in Wagoner County was ever wrongfully denied reg­
istration, upon proper application.

The 1916 registration of the voters throughout the 
state was the first made. By reference to the statutes it 
will be observed that the plan was to make a permanent 
registration of all qualified voters. The law, applicable to 
all persons alike, does not provide for subsequent registra­
tion of the then qualified voters, except those who could not 
register in 1916 on account of absence, sickness, or other 
unavoidable misfortune.

For some reason not appearing in the record Lane 
failed to apply in 1916 for registration upon the permanent 
list of voters. It is true he says he applied in 1916 and at 
all registration periods subsequent thereto. But his own 
story is that in 1916 he applied to Workman, who was not 
registrar until 1920. In 1916 the registrar in plaintiff’s 
precinct where he was required to register was James 
L' Pace, and no other person. Pace had the records and



performed his duties as registrar throughout both of the 
1916 registration periods which came before the primary 
and general elections of that year. The evidence upon this 
point (R. 28-52) follows:

Lane testified that he applied for registration in 1916 
to a man named Workman (R. 28) and, over defendant’s 
objection and exception made upon the ground that the 
question did not call for the best evidence, testified that 
Workman was the 1916 precinct registrar. There was no 
documentary evidence available from the public records of 
the county as to who was in fact the 1916 registrar in the 
precinct, except the registration record of the county, page 
71 of which was introduced in evidence by plaintiff (R. 34) 
and it was there found that said public registration record 
contained the names of all the precinct electors registered 
in 1916, which list was made in the proper registration pe­
riods of 1916, and by Pace, rather than Workman (R. 34, 
et seq.).

In the absence of an available public record of the 
county showing the appointment of the precinct registrar 
for 1916, there was introduced the Wagoner County Dem­
ocrat, a newspaper published at Wagoner, the county seat 
of Wagoner County, the same being the issue of April 27, 
1916, wherein appeared a list of the precinct registration 
officers under appointment made by the county registrar. 
This published list shows that Pace was the 1916 registrar 
in Gratesville Precinct i#.l, where the plaintiff lived and 
was required to register (R. 45). Various original regis­
tration certificates in the hands of voters of the precinct 
were introduced, all issued by Pace (R. 40, et seq.). Sure­
ly it requires no argument to show that documentary evi­
dence made at the time, particularly the public record of 
the county made by proper authority, is the best evidence to 
prove who was the 1916 precinct registrar.

48 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 49

Pace, the 1916 registrar, testified, identifying the au­
thoritative and public registration lists made by himself 
for both of the registration periods in 1916, selecting names 
of voters whom he recalled registering in both of the reg­
istration periods for that year, and further testifying that 
he served for those periods.

Plaintiff Lane admitted that he did not apply to Pace 
for registration. Thus it affirmatively appears from plain­
tiff’s own admissions, from the county’s public records of 
the voters registered in 1916, and from all the available 
documentary evidence made at the very time of the regis­
tration, that Workman, to whom Lane says he went for 
registration, was not the registrar for that year. It does 
appear, however, that Workman was the registrar in that 
precinct in 1920.

There is not the slightest evidence that the 1916 reg­
istrar ever refused registration to any elector whomsoever, 
whether white or colored. As to the alleged wrongful re­
fusal to register negroes throughout the county, it should 
he noted that there is no evidence that at any time in Wag­
oner County any proper application for registration of a 
qualified colored voter was refused. It is not for us to seek 
the reason why the great body of colored electors in the 
county did not apply for registration in 1916. The emo­
tional appeals in petitioner ’s brief describing the alleged 
wrongs upon colored persons throughout the county are 
without basis in fact appearing in the record. Perhaps 
there are intimations in the record as to the reason why 
so many negroes entitled to registration in Wagoner Coun­
ty failed of registration. If required to say how this condi­
tion was brought about, we would have to assume that 
Wong advice was given to the great majority of the col­
ored people of Wagoner County, to the effect that they 
should ignore the provisions of the registration laws, upon



the theory that they are void, as here contended by plain­
tiff.

It has been already pointed out that Lane himself de­
clined to take good advice when given by high authority. 
In this connection it should be borne in mind that whilst 
the plaintiff Lane was on the witness stand before Judge 
AVilliams, the then United States Judge for the Eastern 
District of Oklahoma, in an action involving Lane’s failure 
and that of others to be registered, Judge Williams himself 
pointed out to Lane the statutory requirement for appeal 
in case of refusal by a registration officer to register an 
applicant; that thereafter Lane appeared before Parks, 
the principal defendant here, and having been denied reg­
istration, instituted this original action, wholly disregard­
ing the advice which he had received from a Federal judge. 
If that sort of spirit has prevailed among the colored peo­
ple of Wagoner County, we have an explanation of the 
fact that not many colored persons in Wagoner County 
are registered.

50 I . W . L a n e  v . J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 51

V I I .
There was no proof of conspiracy upon the part of the 

defendants or any of them, to deny negroes the right of 
registration. The Circuit Court of Appeals so held (R. 100).

The gist of the testimony of plaintiff’s witnesses is to 
the effect that Parks declined to register Lane, giving as the 
reason that he had been advised by the “ higher ups” , the 
defendants Moss and Wilson, not to register colored people.

As to the defendant Moss: There was only pure hear­
say, to which the defendants objected and excepted, tend­
ing to connect Moss with this statement alleged to have been 
made by Parks. If Parks did make the statement that 
he was instructed by Moss not to register colored people, 
it is not binding upon Moss, no other evidence appearing 
to connect Moss with the alleged wrongdoing of Parks.

As to the defendant Wilson: He is in the same situ­
ation as the defendant Moss, and for the same reason there 
is nothing of record so connecting him with Parks as to 
justify the charge of conspiracy.

We are therefore brought to consider Parks alone, 
who followed, in the case of Lane, the plain provisions of 
the applicable statutes denying Lane registration because 
he did not belong to any one of the classes whom Parks was 
authorized to register at that time. There is no evidence 
that in 1934 any white person in the state was ever regis­
tered in similar circumstances. Those who failed to have 
their names placed upon the permanent registration lists 
of 1916, whether white or colored, have been treated alike, 
so far as the record shows.



52 I .  W .  L a n e  v . J e s s  W i l s o n ,  e t  a e .

V I I I .
The Oklahoma Registration Statutes do not violate any 

of the constitutional provisions invoked by plaintiff. They 
cannot be overthrown by any or all the applicable rules 
for interpretation.

No resort can be had to administrative results or other 
extraneous matters, for the statutes are not ambiguous or 
of doubtful meaning.

The challenge for alleged discrimination is not sus­
tainable. The sole test of the constitutionality of the al­
leged discriminatory provisions is this: Were those who
did not vote in 1914 subjected in 1916 to the same standard 
of qualification as to the right to vote, as those who had 
voted in 1914?

(a) Statutes which are clear and unambiguous, as in the 
instant case, when challenged u p o n  constitutional 
grounds, must be tested from the statutory provisions 
themselves, unaided by extraneous facts with respect 
to the manner in which they have been administered. 
Such extraneous matters are resorted to for the sole 
purpose o f determining the intent o f the Legislature, 
where the intent is left doubtful upon the face of the 
statutes. Petitioner’ s contention that the Oklahoma 
Registration Statutes violate constitutional provisions 
because the evidence here shows that actual adminis­
tration under the statutes achieved a result contrary to 
constitutional provisions, is not supported by author­
ities cited upon the point. These cases are here exam­
ined and distinguished.

The true rule upon this point is stated in Cooley’s 
Constitutional Limitations, 6th Ed., at pages 79-80, thus:

“ The considerations thus far suggested are such 
as have no regard to extrinsic circumstances, but are 
those by the aid of which we seek to arrive at the 
meaning of the constitution from an examination ol



B r i e f  o f  R e s p o n d e n t s . 53

the words employed. It is possible, however, that after 
we shall have made use of all the lights which the in­
strument itself affords, there may still be doubts to 
clear up and ambiguities to explain. Then, and only 
then, are we warranted in seeking elsewhere for aid. 
We are not to import difficulties into a constitution, by 
a consideration of extrinsic facts, when none appear 
upon its face. If, however, a difficulty really exists, 
which an examination of every part of the instrument 
does not enable us to remove, there are certain extrinsic 
aids which may be resorted to, and which are more or 
less satisfactory in the light they afford.”  (Italics 
ours.)

And at pages 84-85:
“ Where, however, no ambiguity or doubt appears 

in the law, we think the same rule obtains here as in 
other cases, that the court should confine its attention 
to the law, and not allow extrinsic circumstances to 
introduce a difficulty where the language is plain. To 
allow force to a practical construction in such a case 
would be to suffer manifest perversions to defeat the 
evident purpose of the lawmakers. ‘ Contemporary con­
struction * # * can never abrogate the text; it can never 
fritter away its obvious sense; it can never narrow 
down its true limitations; it can never enlarge its nat­
ural boundaries.’ While we conceive this to be the 
true and only safe rule, we shall be obliged to confess 
that some of the cases appear, on first reading, not to 
have observed these limitations.”  (Italics ours.)

The author then refers to authority which appears upon 
first reading to announce a contrary rule, and then, with 
respect to this apparent contra, states at page 85:

“ It is believed, however, that in each of these 
cases an examination of the Constitution left in the 
minds of the judges sufficient doubt upon the question 
of its violation to warrant their looking elsewhere for 
aids in interpretation, and that the cases are not in



54 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

conflict with the general rule as above laid down.” 
(Italics ours.)

In Moore v. Otis (8tli Cir.), 275 Fed. 747, the rule for 
which we contend was announced thus:

“ In this connection it is proper to say that the 
constitutional validity of a law has to be tested not by 
what has been done under it but what may by its 
authority be done. Montana Co. v. St. Louis, etc. Co., 
152 U. S. 170,14 Sup. Ct. 506, 38 L. ed. 398. One public 
official may construe the law a certain way and another 
in a different way, but the courts only look to what may 
be done by any public official under a fair construction 
of the law.”  (Italics ours.)

In Montana Co. v. St. Louis Mining Co., 152 U. S. 160, 
38 L. ed. 398, this Court put this question at rest by ex­
pressly approving a New York case, from which this Couit 
copied and approved this statement of the rule: The
constitutional validity of law is to be tested, not by what 
has been done under it, but by what may by its authority, 
be done’ ” , saying, however, as was said by the Eighth 
Circuit, quoted supra, that the courts will look only to what 
may be done by the public officials under a fair construc­
tion of the law.

In Grainger v. Douglas (Sixth Circuit), 148 Fed, 513, 
this question was under consideration. The judges of the 
Sixth Circuit considered the Tick Wo case from California, 
which is relied upon by plaintiff here, and held:

“ It is to be noted in this connection that the ques­
tion whether said act confers arbitrary power is not 
to be determined by the fact that the power conferee 
may have been exercised arbitrarily as to the appel­
lee. If such is the case, possibly it may have some 
bearing on the interpretation of the power conferred- 
In the Yick Wo case Mr. Justice M atthews seems to



B r i e f  o f  R e s p o n d e n t s . 55

intimate that the arbitrary action of the board of 
supervisors complained of therein did have an in­
terpreting effect on the nature of the power conferred. 
But we think Judge Sawyer struck a true note, in the 
case of Ex parte Christensen (C. C.) 43 Fed. 243, 
247, when he said:

‘ The validity of an ordinance must be de­
termined by its terms, by what it authorizes, not 
by the manner of its execution. It is valid or in­
valid, irrespective of the m.awner in which it is 
in fact administered. Its capability of being abus­
ed is the test.’ ”  (Italics ours.)

In State v. Hall (Wis.), 190 N. W. 457, is found one of 
the most enlightening of the many state cases in point. The 
Supreme Court, in arguing against resort to extraneous 
matters where a statute plain within its own terms is to 
be construed, said :

“ Were that so, then a law would be constitutional one 
day and the next it would be unconstitutional, because 
of the happening of an independent event. The con­
stitutionality of laws does not depend upon such for­
tuitous circumstances. It is a well-established principle 
of law that the constitutionality of an act cannot be 
tested by the evidence in the particular case. State v. 
Emery (Wis.), 189 N. W. 571; St. Louis v. Liessing, 
190 Mo. 464, 89 S. W. 611, 1 L. R. A. (N. S.) 918, 
109 Am. St. Rep. 774, 4 Ann. Cas. 112. In the latter 
case the court says:

‘ The constitutionality of the law is not to be 
determined upon a question of fact in each case, 
but the courts determine for themselves upon the 
fundamental principles of our Constitution that 
the act of the legislature or municipal assembly is 
not to be declared void unless the violation of the 
Constitution is so manifest as to leave no room 
for reasonable doubt. ’



“ This in the nature of things must be so, else a 
law would be constitutional under the facts found in 
one case and' unconstitutional under the facts found 
in another, or it would be valid today, but void to­
morrow, because of the happening of an extraneous 
event. If such a view should obtain, the statute in ques­
tion has been constitutional since its enactment in 
1909, and until the Democrats in 1922 failed to poll a 
10 per cent, vote at the primary, when it become un­
constitutional. Such a test of constitutionality is un­
thinkable. That in the course of time oft-repeated ex­
perience may modify the judicial view as to constitu­
tionality of laws is apparent; but it should not and 
cannot be changed because of a few isolated instances. 
Besides, one may well query the utility or necessity of 
a law whose violation is not contemplated.”  (Italics 
ours.)

The petitioner’s contention, if sustained, would lead 
to the inextricable difficulties above stated. Wagoner Coun­
ty has only a very small part of the state’s population. It 
is only one of seventy-seven counties of the state. There 
is not so much as an effort to show that any wrongs were 
inflicted by the registration officers throughout the state in 
the other seventy-six counties. The instances complained 
about in Wagoner County, if true, are so isolated and com­
paratively unimportant, when the vast population as a 
whole is considered, that the court cannot determine, even 
if it were material for consideration here, the general prac­
tice under the registration law throughout the state, al­
though there is evidence in the record tending to show 
that large numbers of negroes were registered elsewhere 
(R. 48). We take it that the court will assume that no abuses 
existed in the other parts of the state. Assuming for ar­
gument that there were abuses in Wagoner County, they are 
without weight here.

56 I. W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B b ie e  o k  R e s p o n d e n t s . 57

Under another head, where we discuss the facts par­
ticularly, we undertake to show that the registration stat­
utes were applied without distinction between the whites 
and the colored people of Wagoner County, and that in no 
instance was a qualified elector who complied with the reg­
istration laws, denied the right of registration.

In State v. Layton (Mo.), 61 S. W. 171, 177, the Su­
preme Court said:

“ The constitutionality of the law is not to be de­
termined upon the question of fact in each case, but 
the courts determine for themselves upon the funda­
mental principles of our constitution, which vests the 
legislative power in the general assembly. * *

Many other decisions are to the same effect.

We now undertake to distinguish the cases claimed in 
petitioner’s brief as support for the contention that the 
actual administrative results show that the registration 
law of Oklahoma is unconstitutional and void. The cases 
relied upon by plaintiff fall within two classes. First, those 
cases involving statutes doubtful or ambiguous in their 
terms, and second, those whe r e  the complaining parties 
had been deprived of their constitutional rights while ad­
ministrative officers were acting without any statutory au­
thority. Cooley, in his Constitutional Limitations, 6th Edi­
tion, commencing at page 84 in the excerpts quoted above, 
admits that there are at least some cases which apparently 
sustain plaintiff’s theory upon this point. But he proceeds 
to show that this apparent support is what one might think 
he had found “ on first reading’ ’. Having considered these 
‘first reading”  appearances of departure from the rule 

which he announces, he adheres to and firmly announces, 
without qualification, the doctrine that where no ambiguity 
or doubt appears in the law—in its own terms—no resort



can be had, for the purposes of construction, to adminis­
trative results. And this great authority, having fully con­
sidered the cases, summarizes as above holding:

“ these cases are not in conflict with the general rule as 
above laid down.”

We come now to examine the case of Yick Wo v. Hop­
kins, 118 U. S. 356, 30 L. ed. 220, upon which petitioner 
really relies for his contention that the court may here 
look to administrative results in construing the registra­
tion laws of the state. This is the one outstanding case cal­
culated to mislead a casual observer upon first reading of 
the opinion. No doubt the Yick Wo case contains some 
language of the sort to which Cooley referred in the above 
excerpts—language which might easily lead one to a mis­
conception upon first consideration or “ on first reading”. 
No court however great, no judge however learned, is en­
tirely free, at least upon occasion, from the use of language 
which may lead to a misconception of the intent of the couit 
or judge in an opinion.

The learned judge who wrote the opinion in Grainger 
v. Douglas, 148 Fed. 513, supra, whilst announcing that 
“ the constitutionality of a statute must be determined h) 
its provisions and not by the manner in which it is in fact 
administered” , considered the Yick Wo case carefully and 
undertook to place the language in the Yick Wo case, upon 
which plaintiff relies, beyond the misconception under which 
petitioner’s brief writer seems to labor, notwithstanding 
ample opportunity to avoid the misconception. For the 
purpose, primarily no doubt, of showing that there is noth­
ing in the Yick Wo case contrary to the doctrine in the 
Grainger case, it was said:

“ It is to be noted in this connection that the ques­
tion whether said act confers arbitrary power is not

58 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B b i e f  o f  R e s p o n d e n t s . 59

to be determined by the fact that the power conferred 
may have been exercised arbitrarily as to the appellee. 
If such is the case, possibly it may have some bearing 
on the interpretation of the power conferred. In the 
Tick Wo case Mr. Justice M atthew s seems to intimate 
that the arbitrary action of the board of supervisors 
complained of therein did have an interpreting effect 
on the nature of the power conferred. But we think 
Judge Sawyer struck a true note, in the case of Ex 
parte Christensen (C. C.) 43 Fed. 243, 247, when he 
said:

‘ The validity of an ordinance must he deter­
mined by its terms, by what it authorises, not by 
the manner of its execution. It is valid or invalid, 
irrespective of the manner in which it is in fact 
administered. Its capability of being abused is the 
test.’ ”

Careful study of the Tick Wo and other cases cited by 
plaintiff must lead to the conclusion announced by Judge 
Cooley that these cases, all and singular, are those where 
there was such doubt or ambiguity in the provisions of the 
statutes as to justify resort to extraneous matters, includ­
ing administrative results, which resort, when had, is only 
for the purpose of determining the legislative intent, for 
when that intent appears sufficiently clear, the courts de­
termine the question as to whether or not a given statute is 
constitutional.

Under petitioner’s proposition that the court may look 
to administrative results for interpretation of the statutes, 
only two cases other than Yick Wo y. Hopkins are cited. 
Both of them wholly fail to support petitioner’s contention. 
Henderson v. Mayor of New York, 92 U. S. 259, 23 L. ed. 
543, did not involve this point. It was there held that the 
provisions of the statute in question were void upon the 
face of the statute and upon their own terms. The state leg­
islature had undertaken to regulate commerce with foreign



nations. The third case cited is Minnesota v. Barber, 136 
U. S. 313, 34 L. ed. 455. That case does not present the 
point under discussion. The Minnesota statute was there 
held to be void because by its terms, which were free from 
ambiguity or doubt, the State of Minnesota undertook to 
regulate and hinder interstate commerce.

Finally, upon this point we quote Black on Interpreta­
tion of Laws, under the head of “ Admissibility of Extrin­
sic A ids” , pages 196-197, as follows:

“ In the interpretation of a statute, if a doubt or 
uncertainty as to the meaning of the legislature can­
not be removed by a consideration of the act itself and 
its various parts, recourse may be had to extraneous 
facts, circumstances, and means of explanation, for 
the purpose of determining the legislative intent; but 
those only are admissible which are logically connected 
with the act in question, or authentic, or inherently en­
titled to respectful consideration.

“ When Resort may be had to Extrinsic Aids.
“ The cardinal rule of all statutory construction 

is that the meaning and intention of the legislature are 
to be sought for. This meaning and intention are to 
be sought first of all in the statute itself— in the 
words which the legislature has chosen to express its 
purpose. If these words convey a definite, clear, am1 
sensible meaning, that must 'be accepted as the mean­
ing of the legislature, and it is not permissible to vary 
it or depart from it by reason of any considerations 
found outside the statute or based on mere conjecture. 
In such case, there is no room for construction. But if 
the words of the law are not intelligible, if there arises 
a substantial doubt as to their meaning or application, 
or if there is ambiguity on the face of the statute, then 
the endeavor must be made to ascertain the true mean­
ing and intent of the legislature. And to this end- first 
of all, the intrinsic aids for the interpretation of the 
statute are to be resorted to. It should be read and con­

60 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 61

strued as a whole; its various parts should be compar­
ed; each doubtful word or phrase is to be read in the 
light of the context; the interpretation clause, if there 
is any, should be examined to see if it defines or ex­
plains the ambiguous part; and light may be sought 
from the title of the act, the preamble, and even the 
headings of the chapters and sections.

“ But if these intrinsic aids are exhausted without 
success, if there still remains a substantial doubt or 
ambiguity then recourse may be had to extraneous 
facts, considerations and means of explanation, always 
with the same object, to find out the real meaning of 
the legislature.”  (Italics ours.)

(b) The challenge o f a statute on the ground o f unconsti­
tutionality is not sustainable, unless the case is so clear 
as to be free  o f reasonable doubt.

In Cooley’s Constitutional Limitations, 6th Edition, 
at pages 216-217, under the head ‘ ‘ Judicial Doubts on Con­
stitutional Questions ’ ’, the text is this:

“ It has been said by an eminent jurist, that when 
courts are called upon to pronounce the invalidity of 
an act of legislation, passed with all the forms and 
ceremonies requisite to give it the force of law, they 
will approach the question with great caution, examine 
it in every possible aspect, and ponder upon it as long 
as deliberation and patient attention can throw any 
new light upon the subject, and never declare a statute 
void, unless the nullity and invalidity of the act are 
placed, in their judgment, beyond reasonable doubt. 
A reasonable doubt must be solved in favor of the leg­
islative action, and the act be sustained.

“  ‘ The question whether a law be void for its re­
pugnancy to the constitution is at all times a question 
of much delicacy, which ought seldom, if ever, to be 
decided in the affirmative in a doubtful case. The 
court, when impelled by duty to render such a judg­



62 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

ment would be unworthy of its station could it be un­
mindful of the solemn obligation which that station 
imposes; but it is not on slight implication and vague 
conjecture that the legislature is to be pronounced to 
have transcended its powers, and its acts to be consid­
ered as void. The opposition between the constitution 
and the law should be such that the judge feels a clear 
and strong conviction of their incompatibility with 
each other.’ Mr. Justice W ashington  gives a reason 
for this rule, which has been repeatedly recognized in 
other cases which we have cited. After expressing the 
opinion that the particular question there presented, 
and which regarded the constitutionality of a State 
law, was involved in difficulty and doubt, he says: 
‘ But if I could rest my opinion in favor of the consti­
tutionality of the law on which the question arises, 
on no other ground than this doubt so felt and ac­
knowledged, that alone would, in my estimation, be a 
satisfactory vindication of it. It is but a decent re­
spect due to the wisdom, the integrity, and the patrio­
tism of the legislative body by which any law is passed, 
to presume in favor of its validity, until its violation 
of the constitution is proved beyond all reasonable 
doubt.’ ”  (Italics ours.)

The applicable text in Black on Interpretation of Laws, 
pp. 93-94, is to the same effect, and as follows:

“ Every act of the legislature is presumed to be 
valid and constitutional until the contrary is shown. 
All doubts are resolved in favor of the validity of the 
act. If it is fairly and reasonably open to more than 
one construction, that construction will be adopted 
which will reconcile the statute with the constitution 
and avoid the consequence of unconstitutionality.

‘ ‘ Legislators, as well as judges, are bound to obey 
and support the constitution, and it is to be understood 
that they have weighed the constitutional validity of 
every act they pass. Hence the presumption is always



B b i e f  o f  R e s p o n d e n t s . 63

in favor of the constitutionality of a statute; every 
reasonable doubt must be resolved in favor of the stat­
ute, not against; and the courts will not adjudge it in­
valid unless its violation of the constitution is, in their 
judgment, clear, complete, and unmistakable. Hence 
it follows that the courts will not so construe the law 
as to make it conflict with the constitution, but will 
rather put such an interpretation upon it as will avoid 
conflict with the constitution and give it full force and 
effect, if this can be done without extravagance. If 
there is doubt or uncertainty as to the meaning of 
the legislature, if the words or provisions of the stat­
ute are obscure, or if the enactment is fairly suscep­
tible of two or more constructions, that interpretation 
will be adopted which will avoid the effect of uncon­
stitutionality, even though it may be necessary, for 
this purpose, to disregard the more usual or apparent 
import of the language employed. ‘ It is the duty of 
the court to uphold a statute when the conflict between 
it and the constitution is not clear; that the implica­
tion which must always exist, that no violation has been 
intended by the legislature, may require the court, in 
some cases, where the meaning of the constitution is 
in doubt, to lean in favor of such a construction of the 
statute as might not at first view seem most obvious 
and natural. Where the meaning of the constitution is 
clear, the court, if possible, must give the statute such 
a construction as will enable it to have effect.’ ‘ If, 
upon the construction we have been considering, the 
law in question would be void, or even of doubtful 
validity, it is our duty to find, if we are able, some other 
construction that wiil relieve it of this difficulty. If a 
law can be upheld by a reasonable construction, it 
ought to be done, and it is to be presumed that the 
legislature, in passing it, intended to enact a reason­
able and just law, rather than an unreasonable and 
unjust one.’ ”

The reported cases upon this point are too numerous 
and too well known to require citation.



(c) W here a statute kas been long acquiesced in by the 
public and treated as valid by various governmental 
departments, ordinary presumption o f constitutionality 
is greatly strengthened.

—City of Tulsa v. Southwestern Bell Telephone Co., 
75 Fed. (2d) 343, 351. See citation support­
ing this rule under note 9 at said page 351.

(d) The test o f a registration statute alleged to be dis­
criminatory is this: Does the statute set up for one 
class o f electors a different or additional standard of 
qualifications to vote, from that required o f other elec­
tors? The “ Grandfather Clause”  having been held un­
constitutional, was not applied in 1916. Plaintiff Lane 
and others similarly circumstanced w ere only requir­
ed in 1916 to m eet the same tests already met by the 
1914 voters. A  plaintiff cannot successfully complain 
on account o f an illegal standard to which he was never 
subjected. There was no discrimination. The Circuit 
Court o f A ppeals held that there was no discrimination 
(R . 100-101). The requirem ent for mandatory regis­
tration o f those who had voted in 1914, and whose 
names w ere on the 1914 lists o f voters, was for con­
venience. There was uniformity in basis o f qualifica­
tion for registration.

The first Oklahoma Legislature enacted general election 
laws for the state, the same being Chapter 31, Session Laws 
of Oklahoma 1907-1908. Provision was made for the regis­
tration of electors in cities of the first class only. Precinct 
election boards were provided for, consisting of an inspec­
tor, who was made chairman of the board, a judge, and a 
clerk, their respective duties were prescribed. One of the 
duties of the precinct board was to pass upon the qualifica­
tions of the unregistered voters. This duty was imposed pri­
marily upon the inspector. An elaborate system was set up 
for challenging applicants to vote for lack of qualifications 
under the Constitution and laws of the state., and for their

64 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 65

examination with respect to qualifications. Though the stat­
ute has been amended upon some points, the duties of the 
precinct boards have remained substantially the same and 
now exist in substance as originally enacted. If Lane pre­
sented himself to a registrar in 1916, not being a resident of 
a city of the first class where registration had been made al­
ready, he had to answer, satisfactorily, exactly the same 
questions which the 1914 voters answered to the satisfaction 
of the precinct hoard. If it be assumed (we contend it cannot 
be so assumed) that the precinct board would have violated 
the Constitution by denying Lane the right to vote in 1914 
if he had tried to vote, this assumption does not improve 
his position, for the manifest reason that in 1916 all he had 
to do for registration was to show he possessed the same 
qualifications as the 1914 voters. He complains because of 
the illegal standard in the “ Grandfather Clause”  to which 
he never was subjected. We do not find any authority hold­
ing that an elector may complain of an illegal standard 
never applied to him, to his injury.

The provision requiring that the registration officers 
place on the lists the names of all qualified electors who 
had voted in 1914, is not discriminatory. It is not unfair 
or unreasonable in any respect. The purpose of the re­
quirement is plain and unobjectionable. The sole purpose of 
registration is to determine in advance of an election the 
persons who are qualified to vote, rather than to await the 
clay for voting and there delay the election by inquiry as 
to qualifications. At the 1914 general election throughout 
the state all those who voted had been examined by the elec­
tion officials at the polls, as required by the Oklahoma stat­
utes. They were then and there properly adjudged to be 
legal voters. Hence there was no necessity whatever for 
another examination as to their qualifications.



Throughout his brief petitioner continuously refers 
to the 1916 Registration Law as a revitalization and con­
tinuance of the “ Grandfather Clause” . This it not true.

Section 1 of Article XXI of the Oklahoma Constitution 
was in full force and effect at the time of the election in 
in 1914. Said provision is as follows:

“ The qualified electors of this State shall be 
citizens of the United States, citizens of the State, in­
cluding persons of Indian descent (native of the Unit­
ed States), who are over the age of twenty-one years, 
and who have resided in the State one year, in the 
County six months, and in the election precinct thirty 
days, next preceding the election at which such elector 
offers to vote. Provided, that no person adjudged guil­
ty of a felony, subject to such exceptions as the Leg­
islature may prescribe, nor any person, kept m a 
poorhouse at public expense, except Federal, Confed­
erate and Spanish-American ex-soldiers or sailors, nor 
any person in a public prison, nor any idiot or lunatic, 
shall be entitled to register and vote.”

The “ Grandfather Clause” , is as follows:
“ No person shall be registered as an elector of 

this State, or be allowed to vote in any election held 
herein unless he be able to read and write any section 
of the Constitution of the State of Oklahoma; but no 
person who was, on January 1st, 1866, or at any tune 
prior thereto, entitled to vote under any form of gov­
ernment, or who at that time resided in some foreign 
nation, and no lineal descendent of such person, shall 
be denied the right to register and vote because of his 
inability to so read and write sections of such Con­
stitution. ’ ’

If the so-called “ Grandfather Clause” , was m fact 
enforced strictly in any given precinct of the State m 19H 
the result as regards registration was this: Each apph

66 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .



B r i e f  o f  R e s p o n d e n t s . 67

cant had to meet not only the requirements of Section 1, 
Article III of the Constitution, supra, but also the provi­
sions of the “ Grandfather Clause” , supra. In 1916, after 
the “ Grandfather Clause”  was stricken down by this Court, 
applicants for registration had to meet only the require­
ments of said Section 1, Article III of the Oklahoma Con­
stitution. And it will be noted that the applicants for reg­
istration in 1916 were not required to meet any test in ad­
dition to the standard for 1914 already met by all the 1914 
voters, every one of whom was required to meet the test, 
just as provided in Section 1, Article III. Thus, it will be 
seen that those who voted in 1914 were already examined 
and found to be qualified, and listed as such, all in accord­
ance with said Section 1, Article III, and it will be further 
observed that every qualified elector of the State thereto­
fore unregistered, whether white or colored, without any 
discrimination whatsoever, was required, if he desired to 
vote, to register in 1916, unless prevented by absence, sick­
ness or unavoidable misfortune, and meet, upon making his 
application, precisely the same test (Sec. 1, Art. I ll, supra) 
as that successfully met by the 1914 voters. Thus the pe­
titioner complains about ancient history.

Cooley on Constitutional Limitations, 6th Edition, at 
page 756, says that the purpose of registration prior to an 
election is to enable the election officers at the polls to avoid 
the haste and confusion that must attend the determina­
tion upon election day of the various and difficult questions 
concerning the right of individuals to exercise the fran­
chise, and that by registration electors are notified in ad­
vance what persons have the right to vote. Nothing worth 
while could have been accomplished by requiring those who 
had been examined and tested in 1914, and who had shown 
themselves to be qualified, to go through the same proceed­
ing' again. The state authorities had the 1914 lists of the



68 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

electors. It was fair to all concerned, and business-like, and 
saved a great deal of trouble and expense, to accept the 
findings theretofore made by the election officers in 1914 and 
issue certificates without application to those whose names 
appeared on the 1914 rolls, and to require in 1916 the same 
test already applied to the 1914 voters to those who had not 
been tested in 1914.

The principle that it is not only proper, but necessary 
to adapt statutory regulations to the demands of con­
venience, is too sound and well-recognized to permit ex­
tended argument. This principle is clearly illustrated by 
the case of Binswanger v. Whittle, et al. (Md. 1938), 2 Atl. 
(2d) 174. There the Court of Appeals of Maryland was 
considering an attack upon the Maryland Registration Stat­
utes, said attack being based upon the ground that the stat­
utes provided different times for the electors to qualify, 
just as does the Oklahoma Registration Law of 1916. Bond,
C. J., speaking for the court, said at page 175:

“ * * * Obviously the statutes have for many years 
adapted registration provisions to the demands of con­
venience in the various parts of the State, and the 
present complaint would involve a recasting of the 
registration system.

“ This court has, however, already expressed the 
opinion that uniformity in the times of registration 
in all portions of the State is not required by the Con­
stitution. In Bangs v. Fey, 159 Md. 548, 556, 152 A 
508, 511, the court said, ‘ It was suggested that there 
might be some question of the validity of laws which 
provide for quadrennial registration in Baltimore, and 
for other times for general registration elsewhere m 
the state, but we fail to see the force of such argu­
ment * * * so long as the qualifications for registra­
tion are the same. ’ The requirement is thought to 
concerned not with perfect uniformity in time an 
other conditions which would not substantially am



B r i e f  o f  R e s p o n d e n t s . 69

unreasonably affect the voting franchise of residents, 
but only with the more important matter of uniformity 
in the basis of the franchise. * * * ”

The fact that the 1914 voters were tested at the polls 
in 1914 (and were found to possess the qualifications set 
out in Section 1, Article III of the Oklahoma Constitution), 
and those who did not vote in 1914 were tested by precisely 
the same standards in 1916 (as a prerequisite to registra­
tion), is unimportant. The petitioner cannot complain suc­
cessfully, because of the mandatory requirement for the 
registration of the 1914 voters, who had already shown that 
they possessed the qualifications set out in Section 1, Ar­
ticle III of the State Constitution, for at the registration 
period in 1916 the electors only met the same test as that 
theretofore passed by the 1914 voters; that is, they showed 
the precinct registrars that they had the qualifications set 
out in said Section 1, Article III.

Let us note the classes of persons who had to come 
in for registration in 1916. They are these:

First. All those adult persons, whether white or col­
ored, who resided in the precinct in 1914 and were entitled 
to vote there but failed to vote. If permitted to refer to 
statistics as to the state’s population, and as to the num­
ber of persons who voted in 1914, we have no doubt we 
could show that a very large percent of the population, both 
white and colored, did not vote in 1914. And no doubt we 
could show that a greater number of whites failed to vote 
in 1914, than the number of negroes who then failed to 
Tote. There is no showing in the record as to these per­
centages. It is matter of common knowledge that a very 
large percent of qualified electors do not vote at a general 
election. How can it be said that there was any discrimina­
tion between the great number of white people who were



70 I .  W .  L a n e  V .  J e s s  W i l s o n ,  e t  a l .

qualified to vote in 1914 and failed to do so, and the negroes 
then qualified to vote, who did not do so! Can it he said 
that the vast number of white people qualified to vote in 
1914, and who failed to do so, were discriminated against 
by the requirement to register the persons who had voted 
in 1914! No. Nor can it be said with respect to the colored 
people.

Second. All persons who were minors in 1914 and 
therefore unable to vote, and who had attained majority at 
the registration period in 1916, were subject to precisely 
the same requirements as those imposed upon Lane by 
the statutes, he not having voted in 1914. Can it be believed 
that the Legislature intended to discriminate against this 
great crowd of persons, white and colored, who had just 
attained majority! They were at the time of the 1916 reg­
istration exactly in the position of Lane, but for a different 
reason.

Third. The many electors who had moved in from with­
out the State of Oklahoma, and here acquired the right to 
vote after the 1914 elections, were subject to the same re­
quirements as the plaintiff Lane. At that period of the 
state’s history there was a large influx from other states. 
Was there a discrimination as to this class!

Fourth. After the 1914 election (November 5,1918, by 
amendment of the state Constitution at Sec. 1, Art. 3) the 
women—about half of the population of the state—acquired 
for the first time the right to vote at a general election. 
No statute was ever enacted to save the women from the 
requirements placed upon those who did not vote in Wll 
All of them had to appear before registration officers, jus 
as Lane was required to do, and establish their qualify 
tions, and become registered in order to vote.



B r i e f  o f  R e s p o n d e n t s . 71

(e) An examination o f all the cases w here registration laws 
have been stricken down upon the ground that they 
were discriminatory, shows that in every instance the 
statutes in question w ere overthrown because as to a 
given and complaining class statutory requirement was 
made for subjecting that class to an additional or dif­
ferent standard o f qualifications to vote than that re­
quired o f others. Exactly the same standards o f quali­
fications to vote have always been required under the 
registration law o f Oklahoma, as to all classes. The 
election officers at the polls in 1914 tested the voters 
by the same standards applied by the registrars in 
1916. Petitioner’s contention that the statutes are dis­
criminatory appears to be without precedent.

Myers v. Anderson, supra, upon which the petitioner 
undertakes to stand, squarely applies this test. The in­
quiry there was, did the statute fixing the qualifications of 
electors set up one standard for the white people, and an­
other for the colored? It was held that the statute was void 
because it did require of the negroes a different standard 
of qualifications to vote than that required of the whites. 
If this Court considers the question as to whether or not 
the registration statutes of Oklahoma are valid, this test 
must dispose of the case in favor of the respondents, for as 
shown above, in 1916 no test of qualifications of electors 
was required beyond that required of those who voted in 
1914.

(f) Petitioner’s contention that the Oklahoma Registration 
Law is void because o f the time limit for registration 
is not well founded.

We find, upon careful examination, that the cases cited 
m support of this contention are not in point.

As typical of the cited cases, attention is called to 
the following, from petitioner’s brief, page 64:



72 I. W . L a n e  v .  J e s s  W i l s o n ,  e t  a l .

“ The third syllabus of the above cited case of
Atty. Gen. v. City of Detroit (1889), 78 Mich. 545, 44
N. W. 388, is as follows:

‘ The act is unreasonable and void because 
it provides for but five registration days during 
the year, at one of which the elector must make 
personal application for registration; thus dis­
franchising persons who are ill or absent on reg­
istration days, h-u.t who would be able to vote on 
election days.’ ”  (Italics ours.)

It will be observed that the Michigan statute under 
consideration made no provision to protect those who were 
absent, sick, or otherwise prevented from registration by 
unavoidable misfortune. The Oklahoma law under attack 
provides for a ten-day registration period, and further pro­
vision is made fully protecting those who were unable to 
register within the ten day period because of absence, ill­
ness, or other good cause. Those who had excuse for not 
registering within the ten days were allowed an additional 
period of fifty days, which fifty-day period commenced 
sometime later.

It is urged that under the Oklahoma law, the petitioner, 
Lane, had to be registered within the ten-day registration 
period in 1916, or forever thereafter be barred from voting. 
There is nothing in the statutes to justify petitioner’s con­
clusion upon this point. It does appear that he is barred 
from voting until such time as the Legislature may cover 
the matter of suffrage by additional legislation. So long as 
there is no discrimination the entire matter lies with the 
Legislature.

With respect to the contention that the 1916 period for 
registration was unreasonably short the respondents say 
that the petitioner cannot be heard to raise this question 
for he alleges in his petition, and testified at the trial, that



B r i e f  o f  R e s p o n d e n t s . 73

he applied to his precinct registrar in 1916 for registration, 
and was refused. If the period had been six months instead 
of ten days, the result would have been precisely the same 
in the case of Lane and others similarly situated. We take 
it as fundamental that one may not successfully challenge 
a statute upon the ground of unreasonable time limit, whilst 
admitting that he has not been affected by the shortness of 
the period of which complaint is made.

The quare in this case is with respect to alleged dis­
crimination. Examination of the various statutory provi­
sions for registration must lead to the conclusion that there 
was no discrimination, merely because the legislature has 
determined that as a matter of policy the period for reg­
istration should be ten days.

As a further expression of such policy, section 5666, 
0. S. 1931, provides:

“ If the qualifications of electors of the State of 
Oklahoma are changed by constitutional amendment 
after the permanent registration provided for in this 
Act shall have been completed, it shall be the duty of 
the proper officers provided for in this Act, to make 
a new registration of the qualified electors of each pre­
cinct in the State of Oklahoma in the same manner as 
provided in this Act. The precinct registrars shall 
make the new registration during the first ten days 
immediately following the first thirty days after such 
constitutional amendment has become effective. Pro­
vided, if any elector should be absent from the county 
of his residence during such period of time, or is pre­
vented by sickness or unavoidable misfortune from 
registering with the precinct registrar, within such 
time, he may register with such precinct registrar at 
any time within thirty days after the close of such 
registration period upon complying with the other pro­
visions of this Act, and the precinct registrar shall 
register no person under this provision unless he shall



74 I .  W .  L a n e  v .  J e s s  W i l s o n ,  e t  a l .

be satisfied that such person was absent from the coun­
ty or was sick during the aforesaid ten days ’ registra­
tion period, or was prevented from registration dur­
ing such period by unavoidable misfortune. Such new 
registration when the same has been completed as pro­
vided in this Act, shall be filed in the office of the coun­
ty clerk, and shall then become and be the permanent 
registration of the qualified electors in each county of 
the State.”

We have called attention to the 1918 amendment to 
the Constitution of Oklahoma, which gave to women the 
right of suffrage. Theretofore they had not had this priv­
ilege in Oklahoma. When granted the right of suffrage, 
they were registered under the above quoted Section 5666. 
As to time limit for registration, and as to excuses for 
which they were given additional time, the provisions are 
the same as those of Section 5654 applicable in 1916. Thus, 
it is clear that from the first the Oklahoma Legislature has 
made no discrimination against negroes. The petitioner 
goes too far in charging the law makers of Oklahoma with 
intention to deprive colored persons of the right of suffrage 
by the statutory provisions relating to registration, be­
cause every white person, whether man or woman, has been 
subjected to the same requirements as those which Lane 
had to meet.

(g) Further as to petitioner’s contention that the negroes 
o f Oklahoma w ere discriminated against by the stat­
utory provisions making it the duty o f precinct regis­
trars to issue registration certificates to qualified elec­
tors who voted in the general election o f 1914.

Petitioner complains of the provisions for the regis­
tration of the qualified 1914 voters, which provisions are 
found in the latter part of Section 5654, 0. S. 1931. These 
provisions should be considered in light of the following 
facts, namely:



B r i e f  o f  R e s p o n d e n t s . 75

That the 1914 voters had already met the qualifications 
set out in Section 1, Article III of the Oklahoma Constitu­
tion;

That the purpose of the Registration Law was to 
establish a permanent list of the qualified electors;

That the State officials had (in 1914) already compiled 
a portion of such permanent list;

That the use of this 1914 list greatly facilitated per­
formance of the enormous task of compiling the permanent 
registration record, thus effecting a great saving in time, 
labor and expense to the State;

When so considered it is readily apparent that the pur­
pose of such provisions was to expedite and simplify the 
registration of all qualified electors. No sound reason, eith­
er practical or theoretical, can he advanced for requiring 
the qualified voters of 1914 to again apply and show their 
qualifications.

Respectfully submitted,

C h a r l e s  G . W a t t s , 
G o rdo n  W a t t s , 

Wagoner, Oklahoma, 
J o s e p h  C . S t o n e , 
C h a r l e s  A. M o o n , 
Muskogee, Oklahoma, 

Attorneys for Respondents.







Ho w a r d  N e s b it t  La w  B r ie f  P r in t e r s
MUSKOGEE, OKLA,



TRANSCRIPT OF RECORD

SUPREME COURT O F T H E  U N IT E D  STA TE S 

October T erm, 1940

No. 618

THE UNITED STATES OF AMERICA, APPELLANT

PATRICK B. CLASSIC, JOHN A. MORRIS, BERNARD W. 
YEAGER, JR., WILLIAM SCHUMACHER, AND J. J. 
FLEDDERMANN

a ppea l  f r o m  t h e  d i s t r i c t  c o u r t  o f  t h e  u n it e d  s t a t e s  f o r
THE EASTERN DISTRICT OF LOUISIANA

FILED DECEMBER 12, 1940





SUPREME COURT OP T H E  U N IT E D  STA TE S

October T erm, 1940

No. 618

T H E  U N I T E D  S T A T E S  O F  A M E R I C A , A P P E L L A N T

vs.
P A T R IC K  B. C L A S S IC , J O H N  A . M O R R IS , B E R N A R D  W . 

Y E A G E R , J R ., W I L L I A M  S C H U M A C H E R , A N D  J . J. 
F L E D D E R M A N N

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR 
THE EASTERN DISTRICT OF LOUISIANA

INDEX
Original Print

Record from D. C. U. S., Eastern Louisiana___________  1 1
Indictment______________________________  2 1
Demurrer_______________________________  22 17
Opinion, Caillouet, J________________________  24 18
Order sustaining demurrer and dismissing first four counts- 29 22
Judgment and decree________________________ 30 22
Petition for appeal_______________________________________  31 23
Assignments of error________________________  38 24
Order allowing appeal_______________________  40 25
Citation [omitted in printing]__________________  43 25
Praecipe for record_________________________  44 26
Clerk’s certificate [omitted in printing]____________  46 26

Statement of points to be relied upon and designation of record. 47 27
I

285900— 41------ 1



■  ■

■

■

'



UNITED STATES VS. PATRICK B. CLASSIC ET AL. 1

1 In United States District Court, Eastern District of 
Louisiana, New Orleans Division

No. 20067 (Criminal)

U n it e d  S ta te s  op  A m e r ic a

P atrick  B. C l a ss ic , J o h n  A. M o rris , B e r n a r d  W. Y eager , J r ., 
W il l ia m  S c h u m a c h e r , J. J. F l e d d e k m a n n

2 Indictment

Filed September 25, 1940
U nited S tates o f  A m e r ic a ,

Eastern District of Louisiana, New Orleans Division:
In the District Court of the United States in and for the Eastern 

District of Louisiana, New Orleans' Division, at the May term 
thereof, A. D. 1940.

The Grand Jurors of the United States duly empaneled, sworn, 
and charged at the term aforesaid of the court aforesaid, on their 
oaths present and charge:

That Patrick B. Classic, John A. Morris, Bernard W. Yeager, 
Jr., William Schumacher, and J. J. Fleddermann, hereinafter 
called defendants, together with divers and sundry other persons 
to your Grand Jurors unknown, heretofore, to wit, on or about 
September 1,1940, and continuously thereafter up to and including 
September 11, 1940, at New Orleans, Louisiana, in the New Or­
leans Division of the Eastern District of Louisiana and within the 
jurisdiction of this Court, did unlawfully, wilfully, knowingly, 
and feloniously conspire, confederate, and agree among themselves 
and with each other and with divers other persons to this Grand 
Jury unknown, to injure, oppress, threaten, and intimidate citi­
zens in the free exercise and enjoyment of rights and privileges 
secured to them by the Constitution and laws of the United States; 
that is to say:

That an election for the office of Congressman in the Congress 
of the United States of America will be held in the Second Con­
gressional District of the State of Louisiana in accordance with the 
provisions of the Constitution and laws of the United States and 
°f the State of Louisiana on November 5, 1940;

That in accordance with the provisions of Louisiana Act No. 46 
of the Kegular Session of the Legislature of the State of Louisiana 
for the year 1940, a Democratic Primary election was held on Sep-
ember 10,1940, in the said Second Congressional District of Lou­



2 UNITED1 STATES VS. PATRICK B. CLASSIC ET AL.

isiana for the purpose of selecting and nominating a candidate for 
the Democratic party to run in said election of November 5,1940; 
that in the said Second Congressional District of Louisiana nomi­
nation as the candidate of the Democratic party is and has always 
been equivalent and tantamount to election, and that, without 

exception, since the adoption of the first primary election 
3 law by the State of Louisiana in the year 1900, the Dem­

ocratic nominee for the office of Congressman from the 
Second Congressional District of Louisiana has been elected;

That the defendants were selected as Commissioners of Elec­
tion in accordance with the provisions of said Act No. 46 of 1940, 
to conduct and did conduct the said Democratic primary election 
in the second precinct of the eleventh ward of the City of New 
Orleans, which is in said Second Congressional District of Louisi­
ana and in the New Orleans Division of the Eastern District of 
Louisiana and within the jurisdiction of this court;

That in said Democratic primary election for Congressman 
from the Second Congressional District of Louisiana there were 
three candidates possessing the qualifications required by law, 
to wit, T. Hale Boggs, Paul H. Maloney, and Jacob Young; that 
the defendants were supporters of T. Hale Boggs for Congress, 
and of other candidates who were running for other district and 
local offices, and were affiliated with a certain faction known as 
the Jones-Noe-Old Regular Faction, which supported T. Hale 
Boggs for Congress;

That in said primary election on September 10, 1940, five hun­
dred thirty-seven (537) citizens and qualified voters, who were 
legally registered as Democrats and entitled to vote, appeared 
at the election polling booth in said second precinct of the eleventh 
ward of New Orleans for the purpose of casting and chd cast 
their votes in said election; .,

That it was part of said conspiracy and the purpose of said 
conspiracy to injure, oppress, threaten, and intimidate the said 
citizens and registered voters who cast their ballots in said secony 
precinct of the eleventh ward of New Orleans in said Democratic 
primary election in the free exercise and enjoyment of their rights 
and privileges secured to them by the Constitution and laws ot 
the United States, to wit, their rights and privileges to vote and to 
have their votes counted as cast for the candidate of their choice
in said election; j

That it was also a part of said conspiracy and the purpose u 
said conspiracy to injure, oppress, threaten and intimidate  ̂ au 
H. Maloney and Jacob Young, citizens and candidates tor t 

office of Congressman in the Congress of the United bta = 
4 from the Second Congressional District of Louisiana

the free exercise and enjoyment of the rights and privileg '



UNITED STATES VS. PATRICK B. CLASSIC ET AL. 3
secured to them by the Constitution and laws of the United States, 
to wit, their right and privilege as citizens to run for the office 
of Congressman in the Congress of the United States from the 
Second Congressional District of Louisiana, by preventing each of 
them from being legally and properly nominated as a candidate 
for said office; and, to wit, their right and privilege to have counted 
for them as cast, all of the votes cast for them in said Democratic 
primary election;

That it was further a part of said conspiracy and the purpose 
of said conspiracy to deprive Paul H. Maloney and Jacob Young 
of the votes cast for them in said second precinct of the eleventh 
ward by not counting some of the votes cast for them and by 
erasing the marks on the ballots placed by the voters in said pre­
cinct behind the names of Paul H. Maloney and Jacob Young in­
dicating votes for Paul H. Maloney and Jacob Young, and placing 
in lieu thereof marks behind the name of T. Hale Boggs indicating 
votes for T. Hale Boggs;

And the Grand Jurors aforesaid, upon their oaths aforesaid, do 
further present and charge that, after the formation of said 
unlawful conspiracy, and in furtherance thereof, and to effect the 
object thereof, the said conspirators did commit and do certain 
overt acts, now herein specified, to wit:

OVERT ACTS

1. That on or about September 10,1940, at New Orleans, Louisi­
ana, in the New Orleans Division of the Eastern District of 
Louisiana and within the jurisdiction of this court, the said de­
fendants changed eighty-three (83) ballots that had been cast for 
Paul H. Maloney and marked and counted them as votes for T. 
Hale Boggs.

2. That on or about September 10,1940, at New Orleans, Louisi­
ana, in the New Orleans Division of the Eastern District of Lou­
isiana and within the jurisdiction of this court, the said defendants 
changed fourteen (14) ballots that had been cast for Jacob Young 
and marked and counted them as votes for T. Hale Boggs.

3. That on or about September 10,1940, at New Orleans, Louisi­
ana, in the New Orleans Division of the Eastern District of

Louisiana and within the jurisdiction of this court, the said 
defendants certified in writing to the Chairman of the Sec­
ond Congressional District Committee of Louisiana that 

the vote for the office of Congressman from the Second Congres­
sional District of Louisiana was as follows, to wit:

For T. Hale Boggs____________________________________________ 526
For Paul H. Maloney_______________________________________  8
For Jacob Young____________________________________________ 3



when in truth and in fact the correct vote cast was:

4 UNITED STATES VS. PATRICK B. CLASSIC ET AL.

For T. Hale Boggs___________________________ 426
For Paul H. Maloney------------------------  94
For Jacob Young---------------------------  17

all of which was and is contrary to the form of the statute in such 
case made and provided and against the peace and dignity of the 
United States.

COUNT TW O

And the Grand Jurors aforesaid, upon their oaths aforesaid, do 
further present and charge: That on or about September 10, 1940, 
at New Orleans, Louisiana, in the New Orleans Division of the 
Eastern District of Louisiana and within the jurisdiction of this 
court, one Patrick B. Classic, one John A. Morris, one Bernard W. 
Yeager, Jr., one William Schumacher, and one J. J. Fleddermann, 
hereinafter called defendants, who were then and there election 
officers of the State of Louisiana, to wit, Commissioners of Elec­
tion in the second precinct of the eleventh ward, New Orleans, 
selected and acting in accordance with the provisions of Act No. 
46 of the Legislature of Louisiana for the year 1940 and acting 
under color of a law and statute of the State of Louisiana, to wit, 
the said Act No. 46 of the Legislature of the State of Louisiana 
for the year 1940 creating the office of Commissioner of Election 
and defining the duties thereof, did unlawfully, wilfully, know­
ingly, and feloniously subject and cause to be subjected regis­
tered voters of the second precinct of the eleventh ward of New 
Orleans, inhabitants of the State of Louisiana, to the deprivation 
of rights, privileges, and immunities secured and protected by the 
Constitution and laws of the United States, to wit, their right to 
cast their votes for the candidate of their choice and to have their 
votes counted for such candidate as cast in the Democratic pri­

mary election of September 10, 1940; that is to say;
6 That an election for the office of Congressman in the Con­

gress of the United States of America will be held in the 
Second Congressional District of the State of Louisiana in ac­
cordance with the provisions of the Constitution and laws of the 
United States and of the State of Louisiana on November 5,1940)

That in accordance with the provisions of - Louisiana Act ho. 
46 of the Regular Session of the Legislature of the State of Loui­
siana for the year 1940, a Democratic Primary election was held 
on September 10, 1940 in the said Second Congressional District 
of Louisiana for the purpose of electing and nominating a cand i- 
date for the Democratic party to run in said election of Novembei 
5, 1940; that in said Second Congressional District of Louisiana 
nomination as the candidate of the Democratic party is and ij'3 
always been equivalent and tantamount to election, and that, wit -



out exception, since the adoption of the first primary election law 
by the State of Louisiana in the year 1900, the Democratic nominee 
for the office of Congressman from the Second Congressional Dis­
trict of Louisiana has been elected;

That the defendants were selected as Commissioners of Election 
in accordance with the provisions of said Act No. 46 of 1940, to 
conduct and dicl conduct the said Democratic primary election in 
the second precinct of the eleventh ward of the City of New Or­
leans, which is in said Second Congressional District of Louisiana 
and in the New Orleans Division of the Eastern District of 
Louisiana and within the jurisdiction of this court;

That in said Democratic primary election for Congressman 
from the Second Congressional District of Louisiana there were 
three candidates possessing the qualifications required by law, to 
wit, T. Hale Boggs, Paul H. Maloney, and Jacob Young; that 
the defendants were supporters of T. Hale Boggs for Congress, 
and of other candidates who were running for other district and 
local offices, and were affiliated with a certain faction known as 
the Jones-Noe-Old Regular Faction, which supported T. Hale 
Boggs for Congress;

That in said primary election on September 10, 1940, five hun­
dred thirty-seven (537) citizens and qualified voters, who were 
legally registered as Democrats and entitled to vote, appeared at 
the election polling booth in said second precinct of the eleventh 
ward of New Orleans for the purpose of casting and did cast their 

votes in said election;
7 That the defendants, well knowing the premises afore­

said, did on the date aforesaid and at the place aforesaid, 
wilfully fail and refuse to count some of the votes cast in said elec­
tion for Paul H. Maloney and for Jacob Young and did erase 
the marks on various ballots placed by said voters in said precinct 
behind the names of Paul H. Maloney and Jacob Young indicating 
votes for Paul H. Maloney and Jacob Young, and did place in lieu 
thereof marks behind the name of T. Hale Boggs indicating votes 
for T. Hale Boggs, and did wilfully fail and refuse to count votes 
cast for Paul H. Maloney and Jacob Young;

That the defendants certified in writing to the Chairman of the 
Second Congressional District Committee of Louisiana that the 
vote for the office of Congressman from the Second Congressional 
District of Louisiana was as follows, to w it:

UNITED STATES VS. PATRICK B. CLASSIC E'T AL. 5

For T. Hale Boggs...,-------------------------526For Paul H. Maloney________________________  8For Jacob Young____________   3

vhen in truth and in fact the correct vote cast was:
For T. Hale Boggs____________________________________________ 426
For Paul H. Maloney________________________________________  94
For Jacob Young_____________________________________________  47



6 UNITED STATES VS. PATRICK B. CLASSIC ET AL.

all of which was and is contrary to the form of the statute in such 
case made and provided and against the peace and dignity of the 
United States.
8  C O U N T  T H R E E

And the Grand Jurors aforesaid, upon their oaths aforesaid, 
do further present and charge: That on or about September 10, 
1940, at New Orleans, Louisiana, in the NewT Orleans Division of 
the Eastern District of Louisiana and within the jurisdiction of 
this Court, one Patrick B. Classic, one John A. Morris, one Ber­
nard W. Yeager, Jr., one William Schumacher, and one J. J. 
Fleddermann, hereinafter called defendants, who were then and 
there election officers of the State of Louisiana, to wit, Commis­
sioners of Election in the second precinct of the eleventh ward, 
New Orleans, selected and acting in accordance with the provi­
sions of Act No. 46 of the Legislature of Louisiana for the year 
1940, and acting under color of a law and statute of the State of 
Louisiana, to wit, the said Act No. 46 of the Legislature of the 
State of Louisiana for the year 1940, creating the office of Com­
missioner of Election and defining the duties thereof, did unlaw­
fully, wilfully, knowingly, and feloniously subject and cause to 
be subjected one Paul H. Maloney, an inhabitant of the State of 
Louisiana, to the deprivation of rights, privileges, and immunities 
secured and protected by the Constitution and laws of the United 
States, to wit, his rights, privileges, and immunities (1) to offer 
himself as a candidate for the office of Congressman in the Con­
gress of the United States for the Second Congressional District 
of Louisiana; (2) to be legally and properly nominated as a can­
didate for the office of Congressman in the Congress of the United 
States from the Second Congressional District of Louisiana; and
(3 ) to have counted for him all votes legally cast for him forsan 
nomination for said office; that is to say,

That an election for the office of Congressman in the Congress oi 
the United States of America will be held in the Second Con­
gressional District of the State of Louisiana in accordance witn 
the provisions of the Constitution and laws of the United States 
and of the State of Louisiana on November 5,1940;

That in accordance with the provisions of Louisiana Act JNo. 
of the Regular Session of the Legislature of the State of L°uisml“ 
for the year 1940, a Democratic Primary election was held on 
September 10, 1940, in the said Second Congressional District o 
Louisiana for the purpose of electing and nominating a canma 

for the Democratic party to run in said election of JN 
9 ber 5, 1940; that in said Second Congressional District o 

Louisiana nomination as the candidate of the Democra 
party is and has always been equivalent and tantamount to e



tion, and that, without exception, since the adoption of the first 
primary election law by the State of Louisiana in the year 1900, 
the Democratic nominee for the office of Congressman from the 
Second Congressional District of Louisiana has been elected;

That the defendants were selected as Commissioners of Election 
in accordance with the provisions of said Act No. 46 of 1940, to con­
duct and did conduct the said Democratic primary election in the 
second precinct of the eleventh ward of the City of New Orleans, 
which is in said Second Congressional District of Louisiana and in 
the New Orleans Division of the Eastern District of Louisiana and 
within the jurisdiction of this court;

That in said Democratic primary election for Congressman from 
the Second Congressional District of Louisiana there were three 
candidates possessing the qualifications required by law, to wit, T. 
Hale Boggs, Paul H. Maloney, and Jacob Young; that the defend­
ants were supporters of T. Hale Boggs for Congress, and of other 
candidates who were running for other district and local offices, 
and were affiliated with a certain faction known as the Jones-Noe- 
Old Begular Faction, which supported T. Hale Boggs for Congress;

That in said primary election on September 10,1940, five hundred 
thirty-seven (537) citizens and qualified voters, who were legally 
registered as Democrats and entitled to vote, appeared at the elec­
tion polling booth in said second precinct of the eleventh ward of 
New Orleans for the purpose of casting and did cast their votes in 
said election;

That the defendants, well knowing the premises aforesaid, did 
on the date aforesaid and at the place aforesaid, wilfully fail and 
refuse to count some of the votes cast in .said election for Paul H. 
Maloney and did erase the marks on various ballots placed by said 
voters in said precinct behind the name of Paul H. Maloney indicat­
ing votes for Paul H. Maloney, and did place in lieu thereof marks 
behind the name of T. Hale Boggs indicating votes for T. Hale 
Boggs, and did wilfully fail and refuse to count votes cast for 
Paul H. Maloney;

That the defendants certified in writing to the Chairman of the 
Second Congressional District Committee of Louisiana that the 

vote for the office of Congressman from the Second Congres- 
hl sional District of Louisiana was as follows, to w it:

UNITED STATE'S VS. PATRICK B. CLASSIC ET AL. 7

For T. Hale Boggs___________________________526
For Paul H. Maloney__________________•______ 8
For Jacob Young______________ _____________  3

vhen in truth and in fact the correct vote cast was:
For T. Hale Boggs____________________________ .______________ 426
For Paul H. Maloney_______________________________________  9 4
For Jacob Young____________________________________________, 17



8 UNITED STATES VS. PATRICK B. CLASSIC ET AL.

all of which was and is contrary to the form of the statute in such 
case made and provided and against the peace and dignity of the 
United States.

COUNT FOUR

And the Grand Jurors aforesaid, upon their oaths aforesaid, 
do further present and charge: That on or about September 10, 
1940, at New Orleans, Louisiana, in the New Orleans Division of 
the Eastern District of Louisiana and within the jurisdiction of 
this Court, one Patrick B. Classic, one John A . Morris, one Ber­
nard W. Yeager, Jr., one William Schumacher, and one J. J. 
Fleddermann, hereinafter called defendants, who were then and 
there election officers of the State of Louisiana, to wit, Commis­
sioners of Election in the second precinct of the eleventh ward, 
New Orleans, selected and acting in accordance with the pro­
visions of Act No. 46 of the Legislature of Louisiana for the year 
1940, and acting under color of a law and statute of the State of 
Louisiana, to wit, the said Act No. 46 of the Legislature of the 
State of Louisiana for the year 1940, creating the office of Com­
missioner of Election and defining the duties thereof, did unlaw­
fully, wilfully, knowingly, and feloniously subject and cause to 
be subjected one Jacob Young, an inhabitant of the State of 
Louisiana, to the deprivation of rights, privileges, and immunities 
secured and protected by the Constitution and laws of the United 
States, to wit, his rights, privileges, and immunities (1) to offer 
himself as a candidate for the office of Congressman in the Con­
gress of the United States from the Second Congressional District 
of Louisiana ; (2) to be legally and properly nominated as a 
candidate for the office of Congressman in the Congress of the 
United States from the Second Congressional District of Louisi­
ana; and (3) to have counted for him all votes legally cast 

for him for said nomination for said office; that is to say: 
11 That an election for the office of Congressman in the

Congress of the United States of America will be held in 
the Second Congressional District of the State of Louisiana in 
accordance with the provisions of the Constitution and laws of 
the United States and of the State of Louisiana on November 5, 
1940;That in accordance with the provisions of Louisiana Act No. 4o 
of the Regular Session of the Legislature of the State of Louisiana 
for the year 1940, a Democratic Primary election was held on 
September 10, 1940, in the said Second Congressional District of 
Louisiana for the purpose of electing and nominating a candidate 
for the Democratic party to run in said election of November 5, 
1940; that in said Second Congressional District of Louisiana 
nomination as the candidate for the Democratic party is and has 
always been equivalent and tantamount to election, and that, wit i



UNITED STATE'S VS. PATRICK B. CLASSIC ET AL. 9
out exception, since the adoption of the first primary election law 
by the State of Louisiana in the year 1900, the Democratic nominee 
for the office of Congressman from the Second Congressional Dis­
trict of Louisiana has been elected;

That the defendants were selected as Commissioners of Election 
in accordance with the provisions of said Act No. 46 of 1940, to 
conduct and did conduct the said Democratic primary election in 
the second precinct of the eleventh ward of the City of New 
Orleans, which is in said Second Congressional District of 
Louisiana and in the New Orleans Division of the Eastern District 
of Louisiana and within the jurisdiction of this court;

That in said Democratic primary election for Congressman 
from the Second Congressional District of Louisiana there were 
three candidates possessing the qualifications required by law, 
to wit, T. Hale Boggs, Paul H. Maloney, and Jacob Young; that 
the defendants were supporters of T. Hale Boggs for Congress, 
and of other candidates who were running for other district and 
local offices, and were affiliated with a certain faction known as the 
Jones-Noe-Old Regular Faction, which supported T. Hale Boggs 
for Congress;

That in said primary election on September 10, 1940, five hun­
dred thirty-seven (537) citizens and qualified voters, who were 
legally registered as Democrats and entitled to vote, appeared at 
the election polling booth in said second precinct of the eleventh 
ward of New Orleans for the purpose of casting and did cast their 

votes in said election;
12 That the defendants, well knowing the premises afore­

said, did on the date aforesaid and at the place aforesaid, 
wilfully fail and refuse to count some of the votes cast in said elec­
tion for Jacob Young and did erase the marks on various ballots 
placed by said voters in said precinct behind the name of Jacob 
Young indicating votes for Jacob Young, and did place in lieu 
thereof marks behind the name of T. Hale Boggs indicating votes 
for T. Hale Boggs, and did wilfully fail and refuse to count votes 
cast for Jacob Young;

That the defendants certified in writing to the Chairman of 
the Second Congressional District Committee of Louisiana that 
the vote for the office of Congressman from the Second Congres­
sional District of Louisiana was as follows, to w it:

For T. Hale Boggs__________________________ 326
For Paul H. Maloney________________________  8
For Jacob Young___________________________  3

Mien in truth and in fact the correct vote cast was:
For T. Hale Boggs____________________________________
For Paul H. Maloney_______________________ ,________
For Jacob Y oung_________________________________



all of which was and is contrary to the form of the statute in such 
case made and provided and against the peace and dignity of the 
United States.

COU N T FIVE

And the Grand Jurors aforesaid, upon their oaths aforesaid, do 
further present and charge: That one Patrick B. Classic, one John 
A. Morris, one Bernard W. Yeager, Jr., one William Schumacher, 
and one J. J. Fleddermann, hereinafter called the defendants, to­
gether with divers and sundry other persons to your Grand Jurors 
unknown, heretofore, to wit, on or about September 10, 1910, and 
continuously up to and including September 11, 1940, at New 
Orleans, Louisiana, in the New Orleans Division of the- Eastern 
District of Louisiana, and within the jurisdiction of this Court, 
unlawfully, wilfully, knowingly, and fraudulently devised and 
intended to devise a scheme and artifice to defraud, and for obtain­
ing money and property by means of false and fraudulent pre­
tenses, representations, and claims, from Paul H. Maloney, from 

Jacob Young, from the legally and qualified registered 
13 voters of election precinct two, ward eleven, of the City of 

New Orleans, from the Democratic party of the Second 
Congressional District of Louisiana, from the citizens of the Sec­
ond Congressional District of Louisiana, from the State of Louisi­
ana and the Secretary of State of Louisiana, and from the United 
States of America and the Congress of the United States, and 
divers other persons to your Grand Jurors unknown, which said 
scheme and artifice to defraud was to be effected by the use and 
misuse of the Post Office establishment of the United States, and 
in furtherance of and for the purpose of executing said scheme 
and artifice, did deposit and cause to be deposited in an author­
ized depository for mail matter to be sent and delivered by the 
Post Office establishment of the United States, and did cause to 
be delivered by mail, according to the direction thereon, divers 
and sundry letters, packages, and writings, which said scheme and 
artifice to defraud was in substance as follows:

That an election for the office of Congressman in the Congress 
of the United States of America will be held in the Second Con­
gressional District of the State of Louisiana in accordance with 
the provisions of the Constitution and laws of the United States 
and of the State of Louisiana on November 5, 1940;

That in accordance with the provisions of Louisiana Act hlo. 
46 of the Regular Session of the Legislature of the State of Loui­
siana for the year 1940, a Democratic Primary election was held 
on September 10, 1940, in the said Second Congressional District 
of Louisiana for the purpose of selecting and nominating a candi­
date for the Democratic party to run in said election of November 
5,1940; that in the said Second Congressional District of Louisiana

10 UNITED STATES VS. PATRICK B. CLASSIC ET AL.



nomination as the candidate of the Democratic party is and has 
always been equivalent and tantamount to election, and that, with­
out exception, since the adoption of the first primary election law 
by the State of Louisiana in the year 1900, the Democratic nomi­
nee for the office of Congressman from the Second Congressional 
District of Louisiana has been elected;

That the defendants were selected as Commissioners of Election 
in accordance with the provisions of said Act No. 46 of 1940, to 

conduct and did conduct the said Democratic primary elec- 
14 tion in the second precinct of the eleventh ward of the City 

of New Orleans, which is in said Second Congressional Dis­
trict of Louisiana and in the New Orleans Division of the Eastern 
District of Louisiana and within the jurisdiction of this court;

That in said Democratic primary election for Congressman from 
the Second Congressional District of Louisiana there were three 
candidates possessing the qualifications required by law, to wit,
T. Hale Boggs, Paul H. Maloney, and Jacob Young; that the de­
fendants were supporters of T. Hale Boggs for Congress, and of 
other candidates who were running for other district and local 
offices, and were affiliated with a certain faction known as the Jones- 
Noe-Old Regular Faction, which supported T. Hale Boggs for 
Congress;

That in said primary election on September 10, 1940, five hun­
dred thirty-seven (537) citizens and qualified voters, who were le­
gally registered as Democrats and entitled to vote, appeared at 
the election polling booth in said second precinct of the eleventh 
ward of New Orleans for the purpose of casting and did cast their 
votes in said election;

That the defendants, well knowing the premises aforesaid, did 
on the date aforesaid and at the place aforesaid, wilfully fail and 
refuse to count some of the votes cast in said election for Paul H. 
Maloney and for Jacob Young and did erase the marks on various 
ballots placed by said voters in said precinct behind the names 
of Paul H. Maloney and Jacob Young indicating votes for Paul H. 
Maloney and Jacob Young, and did place in lieu thereof marks be­
hind the name of T. Hale Boggs indicating votes for T. Hale Boggs, 
and did wilfully fail and refuse to count votes cast- for Paul H. 
Maloney and Jacob Young;

That the defendants certified and represented in writing to the 
Chairman of the Second Congressional District Committee of 
Louisiana that the vote for the office of Congressman from the 
Second Congressional District of Louisiana was as follows, to wit:

UNITED STATES VS. PATRICK B. CLASSIC ET AL. 11

For T. Hale Boggs____________________________________________526
For Paul H. Maloney_______________________________________  8
For Jacob Young_____________________________________________ 3



when in truth and in fact the correct vote cast was—

12 UNITED STATE'S VS. PATRICK B. CLASSIC ET AL.

15 For T. Hale Boggs-------------------------- 426
For Paul H. Maloney-------------- ----------  94
For Jacob Young--------------------------- It

That it was a part of said scheme and artifice to defraud that 
the defendants would fail and refuse to count votes legally cast for 
Paul H. Maloney and Jacob Young in order to deprive them of the 
nomination for the office of Congressman in the Congress of the 
United States of America from the Second Congressional District 
of Louisiana, and would instead count votes which had been cast 
for Paul H. Maloney and Jacob Young for their own candidate,
T. Hale Boggs, in order to defraud P. H. Maloney and Jacob 
Young of their right to be elected Congressman in the Congress 
of the United States from the Second Congressional District of 
Louisiana; to defraud and deprive the said Paul H. Maloney and 
the said Jacob Young of the emoluments of said office, to wit, the 
sum of Ten Thousand Dollars ($10,000.00) per year for two years; 
to defraud and deprive the said Paul H. Maloney and the said 
Jacob Young of their nomination as candidates for the Democratic 
party in the election for said office; to defraud and deprive PaulH. 
Maloney and Jacob Young of votes cast for them in said primary 
election; to defraud and deprive the registered voters of the sec­
ond precinct of the eleventh ward of New Orleans of the right to 
cast their votes for Paul H. Maloney and Jacob Young and to 
have their votes counted as cast; to defraud and deprive the Demo­
cratic party of its right to its legally selected nominee for the 
office of Congressman in the Congress of the United States from 
the Second Congressional District of Louisiana; to defraud and 
deprive the citizens of the Second Congressional District of 
Louisiana of the congressman of their choice; to defraud and de­
prive the State of Louisiana and the Secretary of State of Loui­
siana of the true record and vote cast in said precinct; and to de­
fraud the United States of America and the Congress of the 
United States of America of the right to have a legally selected 
congressman from the Second Congressional District of Louisiana;

And the Grand Jurors aforesaid, upon their oaths aforesaid, 
do further present and charge: That the pretenses, representa­
tions, and claims of the defendants herein, that the correct vote 
cast in said second precinct of the eleventh ward of New Orleans 

was as follows, to wit:
16 For T. Hale Boggs-------------------------------------------------------------------- 52®

For Paul H. Maloney------------------------------------------------------------  ®
For Jacob Young-------------------------------------------------------------------  d



were false, untrue, and fraudulent in this to wit: that the true and 
correct vote cast in said precinct was:

For T. Hale Boggs---------------------------426
For Paul H. Maloney------------------------- 94
For Jacob Young---------------------------  17

And the Grand Jurors aforesaid, upon their oaths aforesaid, 
do further present and charge: that each and every one of the pre­
tenses, representations, and claims made and intended to be made 
by the said defendants were false and untrue and intended to be 
false and untrue, and at all times mentioned herein were known 
by the said defendants to be false and untrue and were made and 
intended to be made by the defendants for the purpose of accom­
plishing the frauds hereinabove described;

That Patrick B. Classic, John A. Morris, Bernard W. Yeager, 
Jr., William Schumacher, and J. J. Fleddermann, the defendants 
herein, on or about the 11th day of September 1940, at New Or­
leans, Louisiana, in the New Orleans Division of the Eastern 
District of Louisiana and within the jurisdiction of this court for 
the purpose of executing the scheme and artifice aforesaid, unlaw­
fully, fraudulently, and feloniously did knowingly deposit and 
cause to be deposited in an authorized depository for mail matter 
of the United States at New Orleans, Louisiana, a certain tally 
sheet for district offices, a certain tally sheet for parish offices, a 
certain poll list for district offices and a certain poll list for parish 
offices enclosed in a postpaid envelope addressed to Hon. Jas. A. 
Gremillion, Secretary of State, Baton Rouge, Louisiana, to be sent 
and delivered by the Post Office establishment of the United States, 
the face and reverse of which tally sheet for district offices were 
and are of the following tenor, to wit:

“1940 Primary for District Officers 
T a l l y  S h e e t

Of the amount of votes of the Democratic Primary Election held 
in the Second Precinct of the Eleventh Ward of the Parish of 
Orleans on the 10th day of September A. D. 1940, for Member of 
Congress, Second Congressional District and for Member of 
Public Service Commission, First Public Service Commission 
District.

UNITED STATES VS. PATRICK B. CLASSIC ET AL. 13



14 UNITED STATES VS. PATRICK B. CLASSIC ET AL.

T A L L Y

Offices and names Amount of votes in 
letters

Amount of 
votes in 
figures

For Member of Seventy-Seventh Congress of the United 
States, Second Congressional District—T. Hale Boggs.

F ive  H u n dred  and 
Twenty-six.

526

For Member of Seventy-Seventh Congress of the United 
States, Second Congressional District—Paul II. Maloney.

Eight--------------------------- 8

For Member of Seventy-Seventh Congress of the United 
States, Second Congressional District—Jacob Young.

Three__ 3

For Member of the Louisiana Public Service Commission, 
First Public Service Commission District—Maurice B. 
Catlin.

Eight_________________ 8

For Member of the Louisiana Public Service Commission, 
First Public Service Commission District—Allen H.

Three_________________ 3

J ohness.
For Member of the Louisiana Public Service Commission, 

First Public Service Commission District—Nathaniel B. 
Knight, Jr.

F ive  H u n dred  and 
Twenty.

520

For Member of the Louisiana Public Service Commission, 
First Public Service Commission District—James P. 
O’Connor, Jr.

One___________________ 1

0For Member of the Louisiana Public Service Commission, 
First Public Service Commission District—Albert 0 . 
Rappelet.

0______________________

18 For Member of the Louisiana Public Service Com­
mission, First Public Service Commission District— 
Francis Williams.

Five________________ 5

And having completed the count, which we certify to be cor­
rect, we have replaced the ballots thus counted, together with a 
District poll list showing the names of the voters who cast said 
ballots and a District tally sheet in the ballot box, which was 
sealed by us and will be delivered to the Clerk of the Criminal 
District Court, and will mail a duplicate District poll list showing 
the names of the voters who cast said ballots and a duplicate Dis­
trict tally sheet to Jas. A. Gremillion, Secretary of State, Baton 
Rouge, Louisiana, as required by Act 46 of 1940.

1. (Signed)
2. (Signed)
3. (Signed)
4. (Signed)
5. (Signed)

P a t r ic k  B . C l a s s ic ,
J o h n  A. M o rris ,
B e r n a r d  W. Y eager , Jr.,
J. F l e d d e r m a n n ,
Wm. S c h u m a c h e r ,

Commissioners of Election.
Sworn to and subscribed before J. Fleddermann, Commissioner, 

by-------------------------------------------------------------------- ---------------------
(Naming the Commissioners signing and taking oath.)

majority of the Commissioners serving at this, the 2 Precinct poll 
of Ward 11 of the Parish of ORLEANS, and by me sworn to and 
subscribed as correct, this 10th day of September A. D. 1940.

(Signed) J. F l e d d e r m a n n ,
Any Commissioner.”



UNITED STATES VS. PATRICK B. CLASSIC ET AL. 15

That at the time of placing and causing to be placed the said pack­
age, tally sheet for district offices, tally sheet for parish offices, 
poll list for district offices and poll list for parish offices in an 
authorized depository for mail matter of the United States, afore­
said, the defendants, Patrick B. Classic, John A. Morris, Bernard 
W. Yeager, Jr., William Schumacher, and J. J. Fleddermann, then 
and there well knew that the said package, the said tally sheet for 
district offices, the said tally sheet for parish offices, the said poll 
list for district offices, and the said poll list for parish offices were 
for the purpose of executing the said scheme and artifice and 
were for the purpose of defrauding Paul H. Maloney, Jacob 
Young, the legally and qualified registered voters of election pre­
cinct two, ward eleven of the City of New Orleans, the Demo­

cratic party of the Second Congressional District of Louis- 
19 iana, the citizens of the Second Congressional District of 

Louisiana, the State of Louisiana, the Secretary of State 
of Louisiana, the United States of America and the Congress of 
the United States; contrary to the form of the statute in such case 
made and provided and against the peace and dignity of the 
United States.

COU N T SIX

And the Grand Jurors aforesaid, upon their oaths aforesaid, do 
further present and charge: That one Patrick B. Classic, one John 
A. Morris, one Bernard W. Yeager, Jr., one William Schumacher, 
and one J. J. Fleddermann, hereinafter called the defendants, to­
gether with divers and sundry other persons to your Grand Jurors 
unknown, heretofore, to wit, on or about September 10, 1940, and 
continuously up to and including September 11, 1940, at New Or­
leans, Louisiana, in the New Orleans Division of the Eastern 
District of Louisiana and within the jurisdiction of this Court, so 
having unlawfully, wilfully, knowingly, and fraudulently devised 
and intended to devise a scheme and artifice to defraud, and for 
obtaining money and property by means of false and fraudulent 
pretenses, representations, and claims, that is to say, the same 
scheme and artifice that is set forth and described in the fifth 
count of this indictment, the allegations concerning which in said 
fifth count are incorporated by reference thereto in this count as 
fully as if they were here repeated, and for the purpose of execut­
ing said scheme and artifice, unlawfully, fraudulently, and felo­
niously did knowingly deposit and cause to be deposited in an 
authorized depository for mail matter of the United States at 
New Orleans, Louisiana, a certain tally sheet for district offices 
and a certain poll list for district offices enclosed in a postpaid 
envelope addressed to Hon. Edw. A. Haggerty, Chairman Demo­



16 UNITED' STATES VS. PATRICK B. CLASSIC ET AL.

cratic Executive Committee Second Congressional District, New 
Orleans, Louisiana, to be sent and delivered by the Post Office 
establishment of the United States, the face of which tally sheet 
for district offices was and is of the following tenor to w it:

“ Second Congressional District 

T a l l y  S h e e t

Of the amount of votes of the Democratic Primary Election held 
in the Second Precinct of the Eleventh Ward in the Parish of Or­
leans on the 10th day of September A. D. 1940, for Member of 
the Seventy-Seventh Congress of the United States, from the 
Second Congressional District of Louisiana, for the term expiring 

January 3rd, 1943.
20 t a l l y

Officers and names Amount of Votes in Let­
ters

Amount of 
Votes in 
Figures

For Member of the Seventy-Seventh Congress of the United 
States, Second Congressional District.—T. Hale Boggs.

Five Hundred and 
twenty six.

526
For Member of the Seventy-Seventh Congress of the United 

States, Second Congressional District—Paul IT. Maloney.
Eight_________________ 8

For Member of the Seventy-Seventh Congress of the United 
States, Second Congressional District.—Jacob Young.

Three_________ _______ 3

We hereby certify that this tally sheet shows a true and correct 
tabulation of the votes cast at aforesaid precinct for the offices 
shown hereon and that this tally sheet will be mailed to Edward 
A. Haggerty, Chairman, Second Congressional District Demo­
cratic Executive Committee, New Orleans, La., as required by 
Act 46 of 1940.

1. (Signed)
2 . (Signed)
3. (Signed)
4. (Signed)
5. (Signed)

Sworn to and subscribed before 
by-----------------------------------------

P a t r ic k  B. C l a ss ic ,
J o h n  A. M o rris ,
B e r n a r d  W. Y eag er , J r.,
J. F l e d d e r m a n n ,
Wm. S c h u m a c h e r ,

Comrrdssioners of 'Election. 
J. Fleddermann, Commissioner,

(Nam ing the Commissioners signing and taking oath.)
majority of the Commissioners serving at this, the 2nd Precinct 
poll of Ward 11 of the Parish of Orleans, and by me sworn to and 
subscribed as correct, this 10th day of September, A. D. 1940.

(Signed) J. F le d d e r m a n n ,
Any Commissioner.”

That at the time of placing and causing to be placed the said 
package, said tally sheet for district offices and the said poll list



UNITED STATES VS. PATRICK B. CLASSIC ET AL. 17
for district offices in an authorized depository for mail matter of 
the United States, aforesaid, the defendants, Patrick B. Classic, 
John A. Morris, Bernard W. Yeager, Jr., William Schumacher, 
and J. J. Fleddermann, then and there well knew that the said 
package, the said tally sheet for district offices and the said 

poll list for district offices were for the purpose of 
21 executing the said scheme and artifice and were for the 

purpose of defrauding Paul H. Maloney, Jacob Young, the 
legally and qualified registered voters of election precinct two, 
ward eleven of the City of New Orleans, the Democratic party 
of the Second Congressional District of Louisiana, the citizens of 
the Second Congressional District of Louisiana, the State of 
Louisiana, the Secretary of State of Louisiana, the United States 
of America and the Congress of the United States; contrary to the 
form of the statute in such case made and provided and against 
the peace and dignity of the United States.

(Signed) B ene A. V iosoa,
United States Attorney.

(Signed)

(Signed)

(Signed)

A true bill.
New Orleans, La., Sept. 25,1910.

(Signed) 22

J. S kelly W right,
Assistant U. S. Attorney. 
H ilary J. Gaudin, 

Assistant U. S. Attorney. 
B obert W einstein,
Assistant U. S. Attorney.

E. B. Du Mont, Foreman.

22 In United States District Court, Eastern District
of Louisiana

[Title omitted.]
Dernwrer

Filed October 9,1940
To the Honorable the Judge of the United States District Court 

for the Eastern District of Louisiana, New Orleans Division:
Now into court come Patrick B. Classic, John A. Morris, Bernard

W. Yeager, Jr., William Schumacker, and J. J. Fledermann, de­
fendants in the above numbered and entitled cause, appearing 
herein through their attorneys, Charles W. Kehl and Fernando 
J. Cuquet, Jr., and demur to the indictment and for the cause of 
said demurrer say:

1. That the matters alleged in said indictment and in each count 
thereof do not constitute any offense against the laws of the United 
States.



2. That there is no allegation that the citizens and qualified 
voters of the second precinct of the eleventh ward of N. 0. in the 
Second Congressional District of Louisiana or the Democratic 
nominees for the office of Congress from the Second Congressional 
District of Louisiana were deprived of any rights, privileges, or 
immunities secured and protected by the constitution or laws of the 
United States on account of said voters and nominees being aliens 
or by reason of their color or race and that as there was no dis­
crimination whatsoever against the latter within the meaning of 
the statute the indictment is defective and fails to allege a crime 
against the U. S.

3. That the allegation in counts 2, 3, and 4 to the effect that the 
defendants were State officials, are mere conclusions and that the 
facts set out in the three aforementioned counts are insufficient to

constitute the defendants as state officials and that hence
23 counts 2, 3, and 4 do not set out a Federal crime within 18

U. S. C. A. No. 52.
4. That the facts set out in counts 5 and 6 are insufficient to con­

stitute a scheme or artifice to defraud, or for obtaining money or 
property by means of false or fraudulent pretenses, representations, 
or promises and use of the mails in the execution thereof within 
the meaning of the mail fraud statute.

Wherefore it is prayed that this demurrer be maintained, the 
indictment dismissed and the defendants discharged without delay.

(Signed) C harles W. K ehl,
(Signed) F ernando J. Cuquet, Jr.,

Attorneys for Defendants.
\Duly sworn to by Patrick B. Classic, Wm. E. Schumacher, J. A. 

Morris, Jos. J. Fleddermann, Bernard W. Yeager, Jr.; Jurat 
omitted in printing.]

24 In United States District Court, Eastern District of
Louisiana, New Orleans Division

[Title omitted.]
Opinion

Filed October 9,1940

Caillotjet, J .: There are six (6 ) counts in the Indictment re­
turned by the Grand Jury, in the above-entitled and numbere 
case, against Patrick B. Classic, John A. Morris, Bernard 
Yeager, Jr., William Schumacher, and J. J. Fleddermann.

They have filed a demurrer to said indictment, and insofar as 
objection is urged to counts 1, 2, 3, and 4, the Court sustains sai

18 UNITED STATES VS. PATRICK B. CLASSIC KT AL.



demurrer on the ground that no provision of Sections 19 and 20 
of the Criminal Code (Secs. 51 and 52, Title 18, U. S. C. A.) 
refers or has application to the state of facts detailed in said four 
counts.

The provisions of Section 51, depended upon by the Government 
as justifying the conspiracy charge covered by count 1, read:

“If two or more persons conspire to injure, oppress, threaten, 
or intimidate any citizen in the free exercise or enjoyment of any 
right or privilege secured to him by the Constitution or laws of 
the United States, or because of his having so exercised the same.” 

The count charges that there was a conspiracy—
“* * * to injure, oppress, threaten, and intimidate citizens in 
the free exercise and enjoyment of rights and privileges secured 
to them by the Constitution and laws of the United States.” 
and that, at a primary election held on September 10th, 1940, in 
accordance with the provisions of Act No. 46 of the Regular Ses­
sion of the Legislature of the State of Louisiana for the year 
1940, for the purpose of selecting and nominating a candidate for 
the Democratic party to run in the election for the office of Con­
gressman in the Congress of the United States of America, 

to be held in the Second Congressional District of the State 
25 of Louisiana, on November 5th, 1940, in accordance with the 

provisions of the Constitution and laws of the United States 
and of the State of Louisiana, the defendants, then and there 
serving as Commissioners of Election, in accordance with said 
Act 46 of 1940, did, as part and purpose of said conspiracy “to in­
jure, oppress, threaten, and intimidate” citizens and registered 
voters who cast their ballots in ,said primary election, at the 2nd 
precinct of the 11th ward of the City of New Orleans, in said Sec­
ond Congressional District, as well as two of the three candidates 
for the nomination as Democratic candidate for the Office of Con­
gressman from said District, to be voted on at the General Election 
of November 5, 1940, change and alter ballots cast for said two 
candidates to read in favor of the third and successful candidate, 
and did so mark and report the same, thereby depriving the voters, 
who had so cast their ballots in favor of either of his two op- 

' ponents, of the free exercise and enjoyment of their rights and 
privileges secured to them by the Constitution and laws of the 
United States, in this wise, to wit: “their rights and privileges to 
vote and to have their votes counted as cast for the candidate of 
their choice in said election” ; and, furthermore, thereby depriving 
each of the first mentioned two candidates of their own rights and 
privileges secured to them by such Constitution and laws, i. e ., “by 
pi eventing each of them from being legally and properly nomi­
nated as a candidate for said office” and by not having counted 
°r them, as cast, all of the votes actually cast for each in said

UNITED STATES VS. PATRICK B. CLASSIC ET AL. 19



primary election. The count specifically alleging that “in the Sec­
ond Congressional District of Louisiana nomination as the can­
didate of the Democratic party is and has always been equivalent 
and tantamount to election, and that, without exception, since the 
adoption of the first primary election law by the State of Louisi­
ana in the year 1900, the Democratic nominee for the office of Con­
gressman from the Second Congressional District of Louisiana 
has been elected

Section 52 provides, in part, as follows:
“Whoever, under color of any law, statute, ordinance, regulation, 

or custom, willfully subjects, or causes to be subjected, any inhabit­
ant of any State, Territory, or District to the deprivation of any 
rights, privileges, or immunities secured or protected by the Con­
stitution and laws of the United States, * * * shall be

fined, etc.”
26 The foregoing is depended upon by the Government as 

justifying the charges covered by counts 2, 3, and 4 to the 
effect, respectively, that the defendants did “unlawfully, wilfully, 
knowingly, and feloniously subject and cause to be subjected'’ not 
only registered voters of the 2nd precinct of the eleventh ward of 
the City of New Orleans, in the Second Congressional District of 
the State of Louisiana, but the two unsuccessful candidates, at 
said Democratic primary election of September 10, 1940, for the 
Democratic nomination as Candidate for the office of Congressman 
at the general election to be held on November 5, 1940, “to the de­
privation of rights, privileges, and immunities secured and pro­
tected by the Constitution and laws of the United States” ; such 
voters having been deprived, it is alleged, of “their right to cast 
their votes for the candidates of their choice, and to have their 
votes counted for such candidate as cast in the Democratic primary 
election of September 10,1940,” and each of said two unsuccessfu 
candidates, having been deprived of his “rights, privileges, and 
immunities—

(1) to offer himself as a candidate for the office of Congressman 
in the Congress of the United States for the Second Congressman 
District of Louisiana;

(2 ) to be legally and properly nominated as a candidate lor the
office of Congressman in the Congress of the United States from 
the Second Congressional District of Louisiana; and .

(3) to have counted for him all votes legally cast for him »  
said nomination for said office

As was held in Newberry et al. vs. United States, 256 U. b. * < 
41 Sup. Ct, 469 (1921), and in prior cases cited by the majority 
opinion, the source of Congressional power over elections ® 
United States Senators and Representatives is found in Section . 
Article 1, of the Federal Constitution, reading as follows:

20 UNITED STATES VS. PATRICK B. CLASSIC ET AL.



UNITED STATES VS. PATRICK B. CLASSIC ET AL. 21

“The times, places, and manner of holding elections for Senators 
and Representatives shall be prescribed in each state by the Legis­
lature thereof; but the Congress may at any time by law make or 
alter such regulations, except as to the places of choosing senators.” 
But the “elections” therein referred to are “general” elections and 
not “primary” elections, which are not final and of themselves do 
not “elect” anyone to serve either in the Senate or House of Repre­

sentatives ; no power to control party primary elections, such 
27 as the Democratic primary election of September 10th, 1940, 

was ever intended at the time that the Constitution was 
adopted; “primary” elections for the nominating of candidates 
for the offices of either Senator or Member of the House of Repre­
sentatives were not even within the orbit of the Convention’s de­
liberations on the subject of representation in the National Con­
gress, as “primaries” were then unknown; and, as Justice McRey- 
nolds pertinently observed in the court’s majority opinion, the 
history of that time indicates “beyond a reasonable doubt” that, 
if the makers of the Constitution had contended for a construction 
of Section 4 of Article I that included and affected a State’s legally 
prescribed medium for the nomination of party candidates seeking 
to be “elected” to either the Senate or the House of Representa­
tives, this would not have been ratified by the State Conventions.

Under the Newberry Case, it must here be said, as was then by 
the organ of the Court, viz:

“We can not conclude that authority to control party primaries 
or conventions for designating candidates was bestowed on Con­
gress by the grant of power to regulate the manner of holding 
elections.”

The “free exercise or enjoyment” of the right or privilege of 
participating in the primary election of September 10,1940, either 
as voter, or candidate for the Democratic nomination for the office 
of Congressman, to be voted on at the general election on Novem­
ber 5, 1940, was not “secured,” nor “secured and protected,” to 
voter or candidate “by the Constitution or laws of the United 
States,” although the four counts here in question so read.

The provisions of Sections 51 and 52, so depended upon by the 
Government to support counts 1, and 2 ,3, and 4, respectively, of the 
indictment levelled against the five defendants, could only be 
made applicable (if these provisions were otherwise susceptible 
of legal application) to the facts charged as having only come 
into being in connection with a party primary election held on 
September 10, 1940, “by stretching old statutes to new uses, to 
which they are not adapted and for which they were not intended,” 
to use the expression of the Supreme Court, in the case of United 
states vs. Gradwell, etc., 243 U. S. 476, 37 Sup. Ct. 407 

(1917).
Clearly, these statutory provisions of 1870 have no appli­

cation here.
28



Under both of the foregoing constructions—that of Section 4 
of Article 1 of the United States Constitution, as well as that of 
Sections 19 and 20 of the Criminal Code (Secs. 51 and 52, Title 
18 U. S. C. A.)—the demurrer filed must be, and is, SUSTAINED 
insofar as it relates to the first four of the six counts of the indict­
ment, and the said four counts are hereby DISMISSED.

(Signed A. J. Caillottet,
Judge.

29 In United States District Court, Eastern District of
Louisiana

Order sustaining demurrer and dismissing first four counts 
October 9, 1940

This cause came on this day to be heard upon the demurrer filed 
on behalf of the defendants herein.

Present: Charles W. Kehl and Fernando J. Cuquet, Jr., Esqs., 
Attorneys for the defendants, and Patrick B. Classic, John A. 
Morris, Bernard W. Yeager, Jr., Wm. Schumacher, and J. J. Fled- 
dermann, the defendants, in person. Rene A. Viosca, Esq., United 
States Attorney, appearing on behalf of the United States.

Whereupon, after hearing the motion and the statements of coun­
sel for the respective parties and on consideration thereof, the 
Court, as appears by the written opinion on file herein, sustained 
the demurrer insofar as it relates to the first four of the six counts 
of the Indictment, and accordingly dismissed the said four counts.

The Court continued the hearing on the demurrer, as to Counts 
5 and 6, until Tuesday, October 22,1940, at 2 :00 o’clock P. M. 30

30 In United States District Court, Eastern District of
Louisiana

22 1 UNITED STATES VS. PATRICK B. CLASSIC ET AL.

[Title omitted.]
Judgment and decree 

Filed October 14, 1940
On the 9th day of October 1940, came the United States of 

America by Rene A. Viosca, United States Attorney for the East­
ern District of Louisiana, and came the defendants Patrick B. 
Classic, John A. Morris, Bernard W. Yeager, Jr., William Schu­
macher, and J. J. Fleddermann, appearing in their own propel 
persons and by Charles W. Kehl and Fernando J. Cuquet, Jjb 
their attorneys, and a hearing was, then and there, had of sat 
defendants’ demurrer to the indictment in the above enti e



UNITED STATES VS. PATRICK B. CLASSIC ET AL„ 23
cause, insofar as said demurrer relates to counts 1, 2, 3, and 4 of 
said indictment, but not as to counts 5 and 6 thereof, the hearing 
as to which two counts wras deferred until October 22, 1940, at 
2:00 o’clock P. M.

The matter at issue having been argued by counsel and duly 
submitted to the Court for decision, it is, therefore, now

Ordered, adjudged, and decreed by the Court, for the reasons 
set forth in the written opinion of the Court filed in these pro­
ceedings, on said October 9, 1940, that the demurrer be, and it is, 
hereby, sustained insofar as it relates to counts 1, 2, 3, and 4 of the 
indictment, and that each of said four mentioned counts be, and the 
same is, hereby quashed and dismissed.

New Orleans, October 14th, 1940.
(Signed) A. J. Caillouet,

Judge.

31 In United States District Court, Eastern District
of Louisiana

[Title omitted.]
Petition for appeal

Filed November 7, 1940
Comes now the United States of America, plaintiff herein, and 

states that in an opinion rendered on October 9,1940, and in a judg­
ment filed on October 14, 1940, the District Court of the United 
States for the Eastern District of Louisiana sustained a demurrer 
to and quashed and dismissed certain counts of the indictment 
herein, including Counts 1 and 2, and the United States of America 
feeling aggmved at the ruling of said District Court in sustain­
ing the demurrer to and quashing and dismissing Counts 1 and 2, 
prays that it may be allowed an appeal to the Supreme Court of 
the United States for a reversal of said judgment, and that a 
transcript of the record in this cause, duly authenticated, may be 
sent to said Supreme Court of the United States.

Petitioner submits and presents to the Court herewith a state­
ment showing the basis of jurisdiction of the Supreme Court to 
entertain an appeal in said cause.

U nited States of A merica,
(Signed) K ene A. Y iosca,

United States Attorney for the 
Eastern District of Louisiana. 

(Signed) B obert W einstein,
Assistant United States Attorney.



38 In United States District Court, Eastern District of
Louisiana

24 i UNITED STATES VS. PATRICK B. CLASSIC ET AL.

[Title omitted.]
Assignments of error 

Filed November 7, 1940
Comes now the United States of America by Rene A. Viosca, 

United States Attorney for the Eastern District of Louisiana, 
and avers that in the record proceedings and judgment herein 
there is manifest error and against the just rights of the said plain­
tiff in this, to wit:

1. That the Court erred in sustaining as to Counts 1 and 2 the 
demurrer to the indictment and in quashing and dismissing those 
counts.

2 . That the Court erred in its interpretation and construction 
of U. S. C., Title 18, Sections 51 and 52.

3. That the Court erred in holding that a conspiracy to deprive 
citizens of their right to have their votes counted as cast for the 
candidate of their choice at a Congressional primary is not punish­
able under U. S. C., Title 18, Section 51.

4. That the Court erred in holding that the conduct of elec­
tion officials, acting under color of state law, in depriving voters, 
who were inhabitants of the State of Louisiana, to their right 
to have their votes counted as cast for the candidate of their choice 
at a Congressional primary is not punishable under U. S. C., Title

18, Section 52.
39 5. That the Court erred in holding that the right of a

voter at a Congressional primary to have his vote counted 
as cast for the candidate of his choice is not a right, privilege or 
immunity secured and protected by the Constitution of the United 
States.

(Signed) Rene A. Viosca,
United States Attorney for the■ 

Eastern District of Louisiana.
(Signed) R obert W einstein,

Assistant United States Attorney.



40 In United States District Court, Eastern District of
Louisiana

UNITED STATES VS. PATRICK B. CLASSIC ET AL. 25

[Title omitted.]

Order allowing appeal 

Filed November 7, 1940
This cause having come on this day before the Court on petition 

of the United States of America, plaintiff herein, praying an 
appeal to the Supreme Court of the United States for the reversal 
of the judgment in this cause insofar as it sustained a demurrer 
to and quashed and dismissed Counts 1 and 2 of the indictment 
in said cause, and that a duly certified copy of the record in said 
cause be transmitted to the Clerk of the Supreme Court of the 
United States, and the Court having heard and considered such 
petition, together with plaintiff’s statement showing the basis of 
the jurisdiction of the Supreme Court to entertain an appeal in 
said cause, the same having been duly filed with the Clerk of this 
Court, it is, therefore, by the Court, Ordered and Adjudged that 
the plaintiff herein, the United States of America, be, and it is 
hereby, allowed an appeal from the judgment of this Court sus­
taining the demurrer to and quashing and dismissing Counts 1 and 
2 of the indictment, to the Supreme Court of the United 

States and that a duly certified copy of the record of said 
41 cause be transmitted to the Clerk of the Supreme Court.

It is further ordered that the United States of America 
be, and it is hereby, permitted a period of forty days in which to 
file and docket said appeal in the Supreme Court of the United 
States.

Dated at Baton Rouge, La., thi,s 7th day of November 1940.
By the Court:

(Signed) A. J. Caillouet,
United States District Judge.

43 [Citation in usual form showing service on Chas. Kehl, 
et al. omitted in printing.]



44 In United States District Court, Eastern District
of Louisiana

26 UNITED STATE'S VS. PATRICK B. CLASSIC ET AL.

[Title omitted.]
Praecipe for transcript of record 

Filed November 7, 1940
To the Clerk, United States District Court for the Eastern District 

of Louisiana:
The appelant hereby directs that in preparing the transcript of 

the record in this cause in the United States District Court for the 
Eastern District of Louisiana, in connection with its appeal to the 
Supreme Court of the United States, you include the following:

1. Indictment.
2. Demurer.
3. Opinion.
4. Judgment.
5. Minute entries.
6. Petition for appeal to the Supreme Court.
7. Statement of jurisdiction of Supreme Court.
8. Assignments of error.
9. Order allowing appeal.
10. Notice of service on appellees of petition for appeal, order 

allowing appeal, assignments of error, and statement as to juris­
diction.

11. Citation.
12. Praecipe.

45 (Signed) R ene A. Y iosca,
United States Attorney for the

Eastern District of Louisiana.
(Signed) R obert W einstein,

Assistant U. S. Attorney.
Service of the foregoing Praecipe for Transcript of Record is 

acknowledged this 8th day of November 1940.
(Signed) Chas. K ehl,
(Signed) F. J. C u q u et , Jr., 

per W. O. C.
(Signed) W arren O. Coleman,

Counsel for Appellees.

46 [Clerk’s certificates to foregoing transcript omitted m 
printing.]



UNITED STATES VS. PATRICK B. CLASSIC ET AL. 27
47 In the Supreme Court of the United States

[Title omitted.]

Statement of points to be relied upon and designation of record 
Filed Dec. 19, 1940

Pursuant to Rule 13, paragraph 9 of this Court, appellant states 
that it intends to rely upon all of the points in its assignments of 
error.

Appellant deems the entire record, as filed in the above-entitled 
cause, necessary for the consideration of the points relied upon.

F rancis B iddle,
Solicitor General.

1940.
Service of the above Statement of Points and Designation of 

Record is acknowledge this 16th day of December 1940.
Chas. K ehl,
F. CuQUET,
Per M. O. C.

Counsel for Appellees. 
W arren O. Coleman,

[Endorsement on cover:] File No. 44967. E. Louisiana, D. C.
U. S. Term No. 618. The United States of America, Appellant, 
vs. Patrick B. Classic, John A. Morris, Bernard W. Yeager, Jr., 
William Schumacher, and J. J. Fleddermann. Filed December 12, 
1940. Term No. 618 O. T. 1940.

U. S. GOVERNMENT PRINTING O FFICE: 1941













,:-V ,

3ffis* - Sû retv.c Ĉ iui, U. j

m? 22 }S4i

mun a«0g£ duplet

fro. 618
r  . ■ ■ --------------

af th tfeM plates
October T erm, 1910

The United States of A merica, appellant

v.
P atrick B. Classic, J ohn A. Morris, B ernard W . 

Y eager, J r., W illiam  Schumacher, and J. J. 
Fleddermann

APPEAL FROM THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DISTRICT OF LOUISIANA

BRIEF FOR THE UNITED STATES





I N D E X

PageOpinion below________________________________ 1
Jurisdiction_________________________________  j
Questions presented___________________
Constitutional and statutory provisions involved.
Statement_________________________
Specification of errors to be urged__________
Summary of argument_________________
Argument-___________________________________ jg

I. The right of a qualified voter to have his vote counted 
as cast in a Democratic Congressional primary in 
Louisiana is secured and protected by Article I of 
the Constitution of the United States_________ 16

1. The Constitutional basis of the right to
choose United States Representatives__  16

2. The Louisiana Law________________ 18
3. The practical significance of the primary__ 22
4. The process of choosing Representatives__ 24
5. The Gradwell, Newberry, and Grovey cases_ 29
6. The Congressional practice___________ 35

II. Voters in a primary election are denied the equal pro­
tection of the laws by State officers who refuse to 
count their votes as cast and count them in favor
of an opposing candidate_________________  36

III. Sections 19 and 20 of the Criminal Code are otherwise
applicable to the acts alleged in the indictment__  40

1. The generality of the statutory words____ 40
2. Section 19 is applicable to the denial of

equal protection by State officers_____ 43
3. The alleged acts of the defendants were done

under “color of law,” within the meaning 
of Section 20___________________ 44

4. Section 20 is not limited to deprivations on
_ account of race, color, or alienage_____ 46Conclusion__________

Appendix,._________________________ __ " ’ 4g

CITATIONSCases:
Breedlove v. Suttles, 302 U. S. 277________________  16
Browder v. United States, No. 287, present Term______  42
Buchanan v. Warley, 245 U. S. 60_______________  39

300703—41------1 ,T.

<N
 

CO 
tH 

00



II

Cases— Continued. Page
Burroughs and Cannon v. United States, 290 U. S. 534____ 33
Chicago, Burlington Ry. v. Chicago, 166 TJ. S. 226-----  37
Chicago, G. W . Ry. v. Kendall, 266 U. S. 94---------- 39
Civil Rights Cases, 109 U. S. 3------------------- 17
Coleman v. Miller, 307 U. S. 433-----------------  42
Connelly v. United States, 79 F. (2d) 373___________  18
Coy, In  re, 127 U. S. 731______________________ 17
Cumberland Coal Co. v. Board, 284 U. S. 23---------- 39
Diulius v. United States, 79 F. (2d) 371------------  18
Grovey v. Townsend, 295 U. S. 45__________  10, 17, 26, 29, 34
Guinn v. United States, 238 U. S. 347-------- 14, 16, 38, 41, 44
Hague v. Committee for Industrial Organization, 101 F. (2d)
774, affirmed, 307 U. S. 496__________________ 42, 45

Hartford Steam Boiler Inspection & Insurance Co. v. Har­
rison, 301 U. S. 459_______________________  39

Hodges v. United States, 203 U. S. 1______________  17
Iowa-Des Moines Bank v. Bennett, 284 U. S. 239-- 11, 12, 37, 39
Karem v. United States, 212 Fed. 250______________  43
Lacombe v. Laborde, 132 La. 435_________________  21
Logan v. United States, 144 U. S. 263-------------  41
McCabe v. Atchison, T. & S. F. Ry. Co., 235 TJ. S. 151__ 39
McCulloch v. Maryland, 4 Wheat. 316------------- 27
McPherson v. Blacker, 146 U. S. 1---------------  16
Minor v. Happersett, 21 Wall. 162---------------  16
Missouri ex rel. Gaines v. Canada, 305 U. S. 337______ 37, 39
Mosher v. City of Phoenix, 287 U. S. 29____________ 12,37
Motes v. United States, 178 U. S. 458_____________  41
Myers v. Anderson, 238 TJ. S. 368________________ U
Newberry v. United States, 256 U. S. 232___________  6,

10, 11, 22, 23, 29, 30, 31, 32, 33, 34, 35,36
Nixon v. Condon, 286 TJ. S. 73__________________12,38
Nixon v. Herndon, 273 U. S. 536------------  12, 38, 41, 42
Payne v. Gentry, 149 La. 707------------------- 21
Pope v. Williams, 193 U. S. 621_________________ 16
Quarles and Butler, Petitioners, In re, 158 U. S. 532----  41
Reese v. United States, 92 U. S. 214______________  43
Ruhr v. Cowan, 146 Mise. 870__________________ 20
Seal v. Knight, 10 La. App. 563_________________ 21
Siebold, Ex parte, 100 TJ. S. 371_________________ 17,28
Smiley v. Holm, 285 TJ. S. 355__________________
State v. Michel, 121 La. 374___________ _______  43
Swafford v. Templeton, 185 TJ. S. 487______________ ^
United States v. Bathgate, 246 TJ. S. 220____________ 41
United States v. Buck, 18 F. Supp. 213, affirmed sub nom, 

United States v. Walker, 93 F. (2d) 383, certiorari denied,
303 U. S. 644, rehearing denied, 303 U. S. 668------

United States v. Buntin, 10 Fed. 730______________ 4°



I l l

Cases— Continued. Page
United States v. Cowan (E. D. La.), demurrer to indictment
overruled, August 14, 1940 (unreported)_____„____ 45, 47

United States v. Cruikshank, 92 U. S. 542__________  17
United States v. Gilliland, No. 245, decided Feb. 3, 1941__  43
United States v. Gradwell, 243 XT. S. 476_ 7, 10, 13, 29, 30, 33, 40
United States v. Harris, 106 U. S. 629_____________ 17
United States v. Mosley, 238 TJ. S. 383__ 9, 13, 17, 18, 41, 42, 46
United States v. Pleva, 66 F. (2d) 529_____________  18
United States v. Powell, 151 Fed. 648, affirmed, 212 U. S.
564__________________________________  17

United States v. Reese, 92 U. S. 214_______________  16, 38
United States v. Stone, 188 Fed. 836______________  45
United States v. Sutherland (N. D. Ga.), demurrer to indict­
ment overruled, July 31, 1940 (unreported)_________  45

United States v. Waddell, 112 U. S. 76_____________  15, 41
United States v. Wheeler, 254 U. S. 281____________  17
United States v. Wood, 299 U. S. 123_____________  27
Virginia, Ex parte, 100 U. S. 339____________  11, 12, 37, 38
Walker v. United States, 93 F. (2d) 383, certiorari denied,
303 U. S. 644, rehearing denied, 303 TJ. S. 668______  33

Wiley v. Sinkler, 179 U. S. 58__________________  17
Yarbrough, Ex parte, 110 U. S. 651______________9, 17, 18

Federal Statutes:
Constitution:

Art. I, Sec. 2.. 3, 9, 10, 16, 22, 24, 25, 27, 28, 29, 33, 34, 37, 49
Art, I, Sec. 4____________  3, 6, 10, 24, 28, 31, 32, 33, 49
Art. I, Sec. 5__________________________  35
Art. I, Sec. 8__________________________  32
Tenth Amendment_______________________ 32
Fourteenth Amendment,.-__ 3, 11, 12, 14, 15, 43, 44, 45, 49
Fifteenth Amendment____________________  44
Seventeenth Amendment___________________ 10

Corrupt Practices Act of Feb. 28, 1925, c. 367, 43 Stat.
1070_________________________________  33, 36

Criminal Code:
Sec. 19 (U. S. C., Title 18, Sec. 51)_____________  3,

4, 6, 7, 8, 9, 13, 15, 18, 29, 40, 41, 42, 43, 44, 47, 49
Sec. 20 (U. S. C., Title 18, Sec. 52)____________  3,

4, 6, 7, 8, 9, 13, 14, 15, 18, 40, 42, 44, 45, 46, 47, 50 
Judicial Code, Sec. 24:

U. S. C., Title 28, Sec. 41 (11)_____________  17
U. S. C„ Title 28, Sec. 41 (15)_____________  17

State Statutes:
Cal. Elections Code (Deering, 1939), Sec. 3001_______  20
Colo. Stat. Ann. (1935), c. 59, Sec. 32_____________  20
Ind. Stat. Ann. (Burns, 1933), § 29-1006_   20
Ky. Stat. Ann. (Baldwin’s Ed. 1936) § 1550-5a___  20



IV

State Statutes— Continued.
La. Act No. 46, Regular Session, 1940: Page

Sec. 1________________________________ 19,50
Sec. 3_______________________________  19, 51
Sec. 4-------------------------------  51
Sec. 5_______________________   51
Sec. 15________________________________51, 56
Sec. 19_______________________________ 52
Sec. 27______________________    52
Sec. 29_______________________________ 52
Sec. 30_______________________________ 52
Sec. 31 (a)____________________________  53
Sec. 35_____________________________25, 37, 53
Secs. 36-39____________________________  54
Secs. 53-57____________________________  55
Sec. 58_______________________________ 55
Sec. 61_____________________________ 37,55,57
Sec. 87„-______________________________20, 57

La. Act No. 160, Regular Session, 1932, Sec. 1-------  21
La. Act No. 224, Regular Session, 1940:

Sec. 48_______________________________ 57
Sec. 50_______________________________ !9
Sec. 51_______________________________ 21
Sec. 73_____  19,21,57

La. Gen. Stat. Ann. (Dart, 1939):
Sec. 2675______________________________ 56, 57
Sec. 2678_____________________________  56
Sec. 2721_____________________________  57

Md. Ann. Code (Flack, 1939), Art. 33, § 85---------  20
Minn. Stat. (Mason, Supp. 1940), § 601-3 (3)--------- 20
Miss. Code Ann. (1930), § 6231 and (Supp. 1938) § 2030-- 20
Mo. Stat. Ann. (1932), § 10269-----------------  20
Neb. Comp. Stat. (Supp. 1939), § 32-1108---------- 20
N. C. Code Ann. (1939), § 6022-----------------  20
Ohio Code Ann. (Throckmorton, 1940), §4785-69-----  20
Okla. Stat. Ann. (1937), Tit. 26, § 162, 163---------- 20
Ore. Code Ann. (1930), Tit. 36, § 701-------------  2®
Tex. Civ. Stat. (1936), Art. 3110----------------  20
Wvo. Rev. Stat. Ann. (1931), c. 36, § 642----------  20

Miscellaneous:
Brooks, Political Parties and Electoral problems, (3d ed.
1933) 273_________________ _____ ________

Cannon’s Precedents of the House of Representatives, (1936)
Sec. 69________________________________

Congressional Directory:
64th Cong., 2d Sess., 2d ed. 1917, p. 118--------
65th Cong., 1st Sess., 1st ed. 1917, p. 118-------
66th Cong., 1st Sess., July, 1919, p, 122---------

20

36
30
30
30



V

Miscellaneous— Continued.
Congressional Directory— Continued. Page

68th Cong., 1st Sess., 1st ed., 1923, p. 120_______  30
69th Cong., 1st Sess., 1st ed., 1925, p. 125_______ 30
71st Cong., 1st Sess., 1st ed., 1929, p. 124________  30
72nd Cong., 1st Sess., 1st ed., 1931, p. 122_______ 30
74th Cong., 1st Sess., 1st ed., 1934, p. 124_______ 30
76th Cong., 1st Sess., 1st ed., 1939, p. 124_______ 30

89 Cong. Globe, 1536________________________  45
91 Cong. Globe, 3611-3612, 3679________________  44
91 Cong. Globe, 3480, 3658, 3690________________  45
92 Cong. Globe, 3807-3808, 3879_________________ 45
64 Cong. Rec. 4567, 67th Cong., 4th Sess___________ 36
1 Farrand, Records of the Federal Convention (1911)____  29
Flack, The Adoption of the Fourteenth Amendment (1908)
219 et seq_______________________________44, 45

Hasbrouck, Party Government in the House of Representatives
(1927) 172, 176, 177_______________________  23

H. Rep. No. 158, 63d Ccsng., 2d Sess., Grace v. Whaley__  35
Hughes, Charles Evans, The Fate of the Direct Primary,
10 National Municipal Review, 23, 24___________  23

Merriam and Overacker, Primary Elections (1928):
p. 130_______________________________  20
pp. 267-269____________________________ 23

Norris, George W., Why I  Believe in the Direct Primary,
106 Ann. Amer. Acad., No. 195, p. 21____________ 24

Orfield, The Unicameral Legislature in Nebraska, 34 Mich.
, L. Rev. 26______________________________ 27
Report of the Attorney General (1940) 77__________  45
Sait, American Parties and Elections (1939), pp. 475-476-- 20
Sargent, The Law of Primary Elections, 2 Minn. L. Rev. 97,
192, 201_______________________________  20

S. Rep. No. 47, 71st Cong., 2d Sess_______________ 35
S. Rep. No. Ill, 71st Cong., 2d Sess______________  35
S. Rep. No. 277, 67th Cong., 1st Sess_____________  35
S. Rep. No. 973, 68th Cong., 2d Sess., Peddy v. Mayfield__ 35
S. Rep. No. 1858, 70th Cong., 2d Sess., Wilson v. Vare__ 35
Stoney, George C., Suffrage in the South, 29 Survey Graphic
163,164 (1940)___________________________ 23

Story, Commentaries on the Constitution of the United States
(Bigelow, 5th ed. 1891)-'____________________  28

United States Documents Illustrative of the Union of the 
American States (1927)_____________________ 27, 28





Cjjimrt of Ife Mnitd States
O cto ber  T e r m , 1940

No. 618

T h e  U n it e d  S t a t e s  o p  A m e r ic a , a p p e l l a n t

v.
P a t r ic k  B .  C l a s s ic , J o h n  A .  M orris, B er n a r d  W .  

Y ea g er , J r ., W il l i a m  S c h u m a c h e r , a n d  J. J. 
F l e d d e r m a n n

APPEAL FROM THE DISTRICT COURT OF THE UNITED 
STATES FOR THE EASTERN DISTRICT OF LOUISIANA

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion o f  the District Court (R . 18-22) is 
reported in 35 F . Supp. 66.

JURISDICTION

The judgment o f  the District Court sustaining 
a demurrer to the first four counts o f the indict­
ment was entered on October 14, 1940 (R . 22). 
The order allowing an appeal from  the judgment 
sustaining the demurrer to the first two counts was 
entered on November 7, 1940 (R . 25). Probable 
jurisdiction was noted by this Court on January 6,

(i)



2

1941. The jurisdiction o f this Court is conferred 
by the A ct o f  March 2, 1907, c. 2564, 34 Stat. 1246, 
as amended (U . S. C., Title 18, Sec. 682), other­
wise known as the Criminal Appeals Act, and Sec­
tion 238 o f  the Judicial Code, as amended by the 
A ct o f  February 13, 1925, c. 229, 43 Stat. 936 
(IT. S. C., Title 28, Sec. 345).

QUESTIONS PRESENTED

An indictment under Sections 19 and 20 of the 
Criminal Code alleges that the defendant Com­
missioners o f  Election, conducting a primary elec­
tion under Louisiana law to designate the 
candidate o f  the Democratic Party fo r  a seat in 
the House o f  Representatives, conspired to alter 
the ballots cast by qualified voters and falsely to 
certify the number o f  votes cast fo r  the respective 
candidates, and did alter such ballots and make 
such false certification. It is alleged that in Loui­
siana designation as the candidate o f the Demo­
cratic Party is equivalent to election. The 
sufficiency o f the indictment to charge violations 
o f  the statute turns upon the following questions:

1. W hether the right o f  a qualified voter to vote 
in the Louisiana prim ary election and to have his 
vote counted as cast by the Commissioners of Elec­
tion is a right secured or protected by Article I  of 
the Constitution o f the United States.

2. W hether the acts o f the Commissioners of 
Election discriminating against the qualified 
voters whose votes were altered and counted for a



3
candidate not o f  their choice, deprived those voters 
of the equal protection o f the laws, secured or 
protected by the Fourteenth Amendment.

3. Whether the right o f a qualified voter to have 
his ballot counted as cast in a Louisiana Congres­
sional prim ary election is among the constitutional 
rights which Sections 19 and 20 o f the Criminal 
Code protect; and whether the sections are other­
wise applicable to the acts alleged in the indictment.

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

Sections 2 and 4 o f Article I  o f  the Constitution, 
the pertinent provisions of the Fourteenth Amend­
ment, Sections 19 and 20 o f the Criminal Code, 
and the material provisions o f  the Louisiana stat­
utes regulating prim ary and general elections are 
set forth in the Appendix.

Section 19 o f  the Criminal Code (II. S. C., Title 
18, See. 51), in so far as material, provides:

I f  two or more persons conspire to in­
jure, oppress, threaten, or intimidate any 
citizen in the free exercise or enjoyment o f 
any right or privilege secured to him by the 
Constitution or laws o f  the United States 
* * * they shall be fined not more than
$5,000 and imprisoned not more than ten 
years, and shall, moreover, be thereafter in­
eligible to any office, or place o f honor, 
profit, or trust created by the Constitution 
or laws o f the United States.



4

Section 20 o f the Criminal Code (U . S. C., Title 
18, Sec. 52) provides:

Whoever, under color o f any law, statute, 
ordinance, regulation, or custom, willfully 
subjects, or causes to be subjected, any in­
habitant o f any State, Territory, or District 
to the deprivation o f  any rights, privileges, 
or immunities secured or protected by the 
Constitution and laws o f  the United States, 
or to different punishments, pains, or pen­
alties, on account o f such inhabitant being 
an alien, or by reason o f his color, or race, 
than are prescribed for  the punishment of 
citizens, shall be fined not more than $1,000, 
or imprisoned not more than one year, or 
both.

STATEMENT

The appellees were indicted in  six counts on 
September 25, 1940, in the United States District 
Court for the Eastern District o f Louisiana, New 
Orleans Division (R . 1-17). Their demurrer to 
the indictment (R . 17-18) was sustained as to the 
first four counts (R . 22-23) which charged viola­
tions o f Sections 19 and 20 o f the Criminal Code 
(U . S. C., Title 18, Sections 51, 52). The Govern­
ment appealed from  the judgment in so far as it 
sustained the demurrer to the first two counts (R. 
23, 25).

The first count (R  1 -4 ) alleged that an election 
o f  a Representative in Congress for  the Second 
Congressional District o f Louisiana was to be held 
on November 5,1940. On September 10, a primary



5

election was held in accordance with Louisiana law, 
for the purpose o f nominating a candidate o f the 
Democratic Party for  that office. In  the Second 
Congressional District o f Louisiana, nomination 
as the candidate o f the Democratic Party is and 
always has been equivalent to election; without ex­
ception the Democratic nominee has been elected 
since the adoption of the first Louisiana primary 
election law in 1900.

There were three candidates in the primary, T. 
Hale Boggs, Paul H. Maloney, and Jacob Young. 
The defendants were Commissioners of Election, 
selected in accordance with the Louisiana statute 
to conduct the primary in the Second Precinct o f 
the Tenth W ard o f  the City o f  New Orleans. Five 
hundred and thirty-seven citizens and qualified 
voters voted in this precinct.

The charge was that the defendants, who were 
affiliated with a faction supporting T. Hale Boggs, 
conspired with each other and with others unknown, 
to injure and oppress citizens in the free exercise 
and enjoyment o f rights and privileges secured to 
them by the Constitution and laws o f the United 
States, namely, (1 ) the right o f qualified voters who 
cast their ballots in this primary election to vote and 
to have their votes counted as cast fo r  the candidate 
of their choice; and (2 ) the right o f the candidates 
to run for the office of Congressman and to have the 
votes in favor o f  their nomination counted as cast. 
The overt acts alleged were that the defendants



6

changed eighty-three ballots cast fo r  Paul H. Ma­
loney and fourteen cast for  Jacob Young, marking 
and counting them as votes fo r  T. Hale Boggs, and 
that they falsely certified the number o f votes cast 
fo r  the respective candidates to the Chairman of 
the Second Congressional District Committee.

The second count (R . 4 -6 ) charged that the de­
fendants as Commissioners o f Election, wilfully 
and under color o f law subjected registered voters 
at the primary, who were inhabitants of Louisiana, 
to the deprivation o f rights, privileges, and im­
munities secured and protected by the Constitution 
and laws o f the United States, namely, their right 
to cast their votes for  the candidates o f  their choice 
and to have their votes counted as cast. Repeating 
the allegations o f the first count, it is charged that 
this deprivation was effected by the wilful failure 
and refusal o f the defendants to count votes as cast, 
by their alteration o f ballots and by their false cer­
tification o f  the number o f votes cast fo r  the respec­
tive candidates.

The District Court, in sustaining the demurrer, 
held that the facts alleged do not constitute an 
■offense under Section 19 or Section 20 o f the Crim­
inal Code (U . S. C., Title 18, Secs. 51, 52). Rely­
ing upon the opinion o f Mr. Justice McReynolds 
in N ew berry  v. United States, 256 U. S. 232, hi 
which three o f the Justices concurred, the District 
Court concluded that Congress has no authority 
under Article I, Section 4 of the Constitution to



7
regulate prim ary elections; that the right o f a 
qualified voter to vote at a primary election held 
to nominate a candidate for  a seat in the House o f  
Bepresentatives is not a right “ secured”  or “ pro­
tected”  by the Constitution or laws o f the United 
States; and, finally, that the application of Sec­
tions 19 and 20 o f the Criminal Code to primary 
elections, which came into existence long after the 
statute was first enacted, would result, in the lan­
guage of United States v. Gradwell, 243 U. S. 476, 
488-489, in “ stretching old statutes to new uses, 
to which they are not adapted and for which they 
were not intended.”

SPECIFICATION OF ERRORS TO BE URGED

The Court erred:
1. In sustaining as to Counts 1 and 2 the de­

murrer to the indictment and in quashing and 
dismissing those counts.

2. In  its interpretation and construction o f 
II. S. C., Title 18, Sections 51 and 52.

3. In holding that a conspiracy to deprive citi­
zens o f their rights to have their votes counted as 
cast for the candidate of their choice at a Congres­
sional primary is not punishable under U. S. C., 
Title 18, Section 51.

4. In holding that the conduct o f  election offi­
cials, acting under color o f state law, in depriving 
voters, who were inhabitants o f the State o f Lou­
isiana, o f their right to have their votes counted 
as cast for the candidate o f their choice at a Con-



8

gressional prim ary is not punishable under 
IT. S. C., Title 18, Section 52.

5. In  holding that the right of a voter at a Con­
gressional primary to have his vote counted as cast 
fo r  the candidate of his choice is not a right, priv­
ilege, or immunity secured and protected by the 
Constitution o f the United States.

SUMMARY OF ARGUMENT

Section 19 o f the Criminal Code makes criminal 
any conspiracy to injure a citizen in the exercise 
“ o f any right or privilege secured to him by the 
Constitution or laws o f the United States” . Sec­
tion 20 provides punishment fo r  anyone who, act­
ing under color o f  law, deprives any person “ of 
any rights, privileges, or immunities secured or 
protected by the Constitution and laws of the 
United States” . The Government contends that 
the right o f a qualified voter in a Louisiana Con­
gressional primary election to have his vote counted 
as cast is secured by Article I  o f the Constitution; 
that voters are deprived o f the equal protection of 
the laws i f  state election officials wilfully count 
their votes cast fo r  two o f the contending candi­
dates in favor of the third; and that Sections 19 
and 20 apply to the deprivation o f these rights 
alleged in the indictment.

I
The right of a qualified voter to have his vote 

counted as cast in a Democratic Congressional pri-



9

mary in Louisiana is secured and protected by 
Article I  o f the Oonsitution o f the United States. 
Section 2 of Article I  confers the right to choose 
representatives upon qualified electors o f the most 
numerous branch o f the several state legislatures. 
The members o f the class are determined by state 
law but as this Court has frequently held, the right 
of those members to choose is granted by the fed­
eral Constitution. The right thus granted is pro­
tected against interference by private individuals 
as well as by the States and Sections 19 and 20 
are designed to afford protection against both 
types o f interference. E x parte Yarbrough, 110 
U. S. 651, and United States v. Mosley, 238 U. S. 
383, involved interference with voting at general 
Congressional elections. The Government con­
tends that the constitutional right to choose is like­
wise impaired by interference with the voting at a 
Democratic Congressional primary in Louisiana.

Under the laws of Louisiana, the primary is a 
part o f the election machinery o f the State. Con­
ducted by State officers at public expense, its func­
tion is not confined to the designation of party 
nominees; it also eliminates candidates from  the 
general election. A  candidate defeated in a pri­
mary is legally precluded from  running as an in­
dependent in the final election; and those who voted 
for him in the primary have no way of expressing 
their choice o f him at the general election. More­
over, in the practical exercise of the right to choose,



10

in Louisiana, the Democratic prim ary is not only 
an integral part o f the process o f choice; it is the 
determinative part.

In  securing the right to choose Congressmen, 
Article I, Section 2, is concerned with realities, not 
with forms. I f  a state prefers to conduct Con­
gressional elections in two steps rather than in one, 
the protection o f the section reaches to both. 
W here, as in Louisiana, the first step is not only 
important but is actually decisive, both in law and 
in fact, the Constitutional guarantee necessarily 
applies.

Neither United States v. Gradwell, 243 IT. S. 476, 
nor N ew berry  v. United States, 256 IT. S. 232, nor 
Grovey  v. Townsend, 295 IT. S. 45, prevents such a 
realistic analysis. In  Gradwell the question of 
whether a primary should be treated generally as 
a part o f the election was expressly reserved. The 
division of the Court in N ewberry  leaves the deci­
sion an authority o f limited scope and force. The 
ease involved a Senatorial rather than a Congres­
sional prim ary; the indictment was based upon a 
statute enacted prior to the adoption of the Seven­
teenth Amendment, and the deciding Justice in­
dicated that he regarded this fact as determinative. 
Thus a m ajority o f the Court accepted the view 
that a primary is not a part o f the election of Sena­
tors, within the meaning o f Article I, Section 4, only 
as long as the choice o f Senators was vested in the 
State legislatures. The status o f the primary as



11

an integral part o f the process o f popular choice 
was not involved. Moreover, the issue was not as 
to the source o f the right to vote but as to the power 
to regulate the campaign; and the primary elec­
tion involved did not eliminate candidates from  
the general election. The Texas primary election 
in the Grovey case differed significantly from  that 
involved in the instant case and the voters were 
not there as here deprived of an opportunity to 
express their choice in any other way.

Finally, Congress both before and after the New­
berry case, has recognized the vital influence of the 
primary upon the final choice, by inquiring into 
the conduct o f primary, as well as general election 
campaigns in determining the qualification o f its 
members and passing on contested elections.

I I

Qualified voters are also deprived of the equal 
protection o f the laws guaranteed by the Four­
teenth Amendment i f  state officers count the votes 
cast for one candidate and w ilfully refuse to count 
those cast for the others. In  receiving and count­
ing ballots, and certifying the results in a primary 
election, the Commissioners o f Election are state 
officers, and their action, under color o f their office, 
even though contrary to state law, constitutes 
‘state action”  within the meaning of the equal pro­

tection clause o f the Fourteenth Amendment. E x  
parte Virginia, 100 U. S. 339, 347; Iowa-Des Moines

300703—41------2



1 2

Bank v. Bennett, 284 U VS. 239, 245-246; Mosher y. 
Oity of Phoenix, 287 U. S. 29. It  is also clear that 
Congress may make criminal the acts o f state of­
ficials which effect a denial o f equal protection 
{E x parte Virginia, supra), and that the equal 
protection clause prohibits unjustifiable discrim­
ination by the State with respect to voting at pri­
mary elections ( Nixon v. Herndon, 273 U. S. 536; 
Nixon v. Condon, 286 U. S. 73). It  is without sig­
nificance that the arbitrary discrimination was not 
based upon race or color, since the equal protection 
clause affords a far broader guarantee. Nor need 
the denial o f equal protection be habitual. It is 
true that inadvertent inequalities produced by the 
administrators o f state laws do not violate the 
Fourteenth Amendment. But when arbitrary in­
equality is designedly produced by state officials, 
the discrimination constitutes a denial o f equal pro­
tection. W hile in cases involving administrative 
inequalities, the unjustifiable discrimination which 
works a deprivation o f equal protection has been 
characterized as “ systematic”  (Iowa-Des Moines 
Bank v. Bennett, 284 U. S. 239, 245), we take this 
to mean that the inequality must be produced by 
conscious and deliberate discrimination, not that it 
must be repetitious.

I l l

Assuming that the right o f a voter to have his 
vote counted as cast in a Congressional primary is



13

a right “ secured”  and “ protected”  by the Constitu­
tion of the United States, the question remains 
whether Sections 19 and 20 are otherwise applicable 
to the acts alleged in the indictment. W e contend 
that they are.

(1) The District Court emphasized the fact that 
primary elections were not in existence in 1870, 
when Sections 19 and 20 were first enacted, and, 
quoting United States v. Gradwell, 243 U. S. 476, 
488-489, it concluded that the application o f the 
statutes was unwarranted as “ stretching old stat­
utes to new uses.”  But the statutes are addressed 
in “ sweeping general words”  to conspiracies 
against and deprivations o f federal rights. United 
States v. Mosley, 238 U. S. 383, 387-388. Section 
19 has been applied in the past to such diverse 
rights as that to inform  o f a federal crime and that 
to stand by a federal homestead. Both sections em­
ploy general words which extend their guarantee 
to any right secured or protected by the Constitu­
tion. Nor is it significant that in 1894 Congress 
repealed the companion provisions o f the statute 
dealing with specific irregularities in elections, 
since United States v. Mosley, supra, definitively 
held that the right to vote still falls within the 
general protection which the statute “ most rea­
sonably affords.”

(2) The first count o f the indictment rests upon 
Section 19, which is hi terms applicable to the acts 
of individuals. The count may nevertheless be sus-



14

tamed, on the theory that the voters were deprived 
o f  rights secured against state action by the Four­
teenth Amendment. Nothing in the language or 
legislative history o f the statute requires the inter­
pretation that it is inapplicable to conspiracies 
to use state power to deprive citizens of rights 
which are constitutionally safeguarded against 
state action. N or does the enabling clause of 
the Fourteenth Amendment suggest that “ ap­
propriate legislation”  must be confined to that 
which deals exclusively with rights guaranteed by 
that Amendment and with state action which in­
fringes them. In  any event, the point was settled 
sub silentio in Guinn v. United States, 238 U. S. 
347, 368.

(3 ) The acts o f the defendants alleged in the 
indictment were done “ under color”  of “ law” or 
‘ ‘ statute ’ ’ , within the meaning o f Section 20. The 
Section was originally enacted to enforce the 
Fourteenth Amendment. There is nothing to re­
quire that it be afforded a narrower scope than 
the Amendment itself, and it is clear that the acts 
alleged constitute “ state action”  forbidden by the 
Amendment, even though they were contrary to 
State law. The Congressional purpose to provide 
a broad protection is apparent on the face of the 
statute. The purpose would be frustrated if the 
statute applied only when the forbidden discrim­
ination is articulately ordained by an invalid State 
law. It  is enough that it is made possible by the 
defendant’s official power.



15

(4) That Section 20 is not limited to the depri­
vation of federal rights on account of color, race, 
or alienage is demonstrable as a matter o f gram­
mar. The only sensible construction of the statute 
is that it forbids the subjection o f inhabitants (1 ) 
to the deprivation o f federal rights; and (2 ) to 
different punishments, on account o f alienage, 
color, or race, “ than are prescribed for  the pun­
ishment of citizens” .

ARGUMENT

Section 19 o f the Criminal Code makes criminal 
any conspiracy to injure a citizen in the exercise 
“ of any right or privilege secured to him by the 
Constitution or laws of the United States” . Sec­
tion 20 provides punishment for anyone who, act­
ing under color o f law, deprives any person “ of 
any rights, privileges, or immunities secured or 
protected by the Constitution and laws of the 
United States” . The District Court held that 
qualified voters in a Louisiana Congressional pri­
mary election are not deprived of a right secured 
or protected by the Constitution1 when state elec­
tion officials deliberately refuse to count their 
votes as east and count them in favor o f  an oppos­
ing candidate. W e contend that the right thus in­
fringed is protected both by Article I  o f the Con­
stitution and by the Fourteenth Amendment, and 
that the statutes apply to the acts alleged in the 
indictment.

1 There are no “laws of the United States’! other than Sec­
tions 19 and 20 themselves which secure or protect this right. 
Cf. United States v. Waddell, 112 U. S. 76.



16
I

THE EIGHT OE A QUALIFIED VOTER TO HAVE HIS VOTE 
COUNTED AS CAST IN A DEMOCRATIC CONGRESSIONAL 
PRIMARY IN LOUISIANA IS SECURED AND PROTECTED 
BY ARTICLE I OF THE CONSTITUTION OF THE UNITED 
STATES
1. The Constitutional Basis of the Bight to 

Choose United States Representatives.— The right 
to choose members o f Congress is secured and pro­
tected by Section 2 o f Article I  o f the Constitution 
o f the United States:

The House o f Representatives shall be 
composed of Members chosen every second 
Year by the People o f the several States, and 
the Electors in each State shall have the 
Qualifications requisite for Electors of the 
most numerous Branch o f  the State Legis­
lature.

B y  the terms o f this section, those qualified to vote 
for  the larger house o f the state legislature are 
entitled to choose United States Representatives: 
the members o f the class are determined by state 
law, but the right o f the members to choose is 
granted by the Federal Constitution.2 In a series

2 The frequent statement that the right to vote derives from 
the states (see, e. g., Minor v. Happersett, 21 Wall. 162,178; 
United States v. Reese, 92 U. S. 214, 217-218; McPherson v. 
Blacker, 146 U. S. 1, 38—39; Breedlove v. Suttles, 302 U. S. 
277, 283) applies to the right to vote for members of Con­
gress only in the sense that the states may thus indirectly 
determine the qualifications of the electors, subject, of course, 
to the Fourteenth, Fifteenth, and Nineteenth Amendments 
(see Pope v. Williams, 193 U. S. 621, 632-634; Guinn v.



17

of historic decisions this Court has recognized the 
Constitutional origin o f this right. E x parte Yar­
brough, 110 U. S. 651; W iley  v. Sinkler, 179 
U. S. 58; Swafford v. Templeton, 185 U. S. 487; 
United States v. Mosley, 238 U. S. 383. See also 
Ex parte Siebold, 100 U. S. 371; In re Coy, 127 
U. S. 731. As the Court said in Ex parte Yar­
brough, 110 U. S. at 663:

* * * they [the States] define who are
to vote for the popular branch o f their own 
legislature, and the Constitution o f the 
United States says the same persons shall 
vote for members o f Congress in that State. 
It adopts the qualifications thus furnished 
as the qualification of its own electors for 
members o f  Congress.

Unlike the rights guaranteed by the Fourteenth 
and Fifteenth Amendments,3 the right to choose 
members of Congress is secured against interfer­
ence by private individuals, as well as against in­
terference by action o f the states. Congress may

United States, 238 U. S. 347; Myers v. Anderson, 238 U. S. 
368)- and any other limitations which may be found in the 
Constitution itself. That Congress regards the right to vote 
as a “right of citizens of the United States,” is indicated 
by subdivisions (13) and (15) of Section 24 of the Judicial 
Code (U. S. C., Title 28, Sec. 41 (11) and Sec. 41 (15)).

3 See, e. gUnited States v. CruikshanJc, 92 U. S. 542, 
554-555; United States v. Harris, 106 U. S. 629; Civil Rights 
Gases, 109 U. S. 3; Hodges v. United States, 203 U. S. 1 ; 
United States v. Powell, 151 Fed. 648 (C. C. N. D. Ala.), 
affirmed, 212 U. S. 564; Grovey v. Townsend, 295 U. S. 45. 
Cf. United States v. Wheeler, 254 U. S. 281.



1 8

protect the right by providing for  the punishment 
o f both types o f  interference and has done so by 
Sections 19 and 20 of the Criminal Code. In  both 
E x parte Yarbrough, supra and United States v. 
Mosley, supra, the right to choose members of the 
House o f  Representatives was impaired by inter­
ference with voting at general Congressional elec­
tions.4 The Glovernment contends that interfer­
ence with the voting at a Louisiana Congres­
sional primary likewise impairs the right to choose, 
and, therefore, constitutes an in jury to the “ free 
exercise or enjoym ent”  o f a right “ secured by the 
Constitution o f  the United States”  and a “ depriva­
tion ”  o f  such a right, within the meaning of the 
statute.

2. The Louisiana Law.— Under the law of Louisi­
ana, “ beyond all question, the primary is a part of 
the election machinery o f the State.” 5 Its func­
tion is not confined to the designation of party

4 In Yarbrough the interference alleged was the preven­
tion of voting; in Mosely, the failure to count votes as cast. 
In' United States v. Buck, 18 F. Supp. 213 (W. D. Mo.), 
affirmed sub. nom. Walker v. United States, 93 F. (2d) 383 
(C. C. A. 8th), certiorari denied, 303 U. S. 644, rehearing de­
nied, 303 U. S. 668, the interference was counting and record­
ing ballots in favor of one Congressional candidate which 
had been cast in favor of another. See also United States v. 
Pleva, 66 F. (2d) 529, 530-531 (C. C. A. 2d), Diulius v. 
United States, 79 F. (2d) 371 (C. C. A. 3d); Connelly v. 
United States, 79 F. (2d) 373 (C. C. A. 3d). Only Section 
19 was involved in each of these cases but Sections 19 and 20 
may fairly be regarded as identical for this purpose.

5 State v. Michel, 121 La. 374, 382, 389.



19

nominees; it eliminates from  candidacy at the gen­
eral election all those who are defeated in the 
primary.

All political parties6 are required by statute to 
nominate their candidates for the Senate and 
House of Representatives by direct primary elec­
tions, and “ the Secretary o f State is prohibited 
from placing on the official ballot the name of any 
person as a candidate for any political party not 
nominated in accordance with the provisions of 
this A ct.”  La. Act No. 46, Section 1, Regular Ses­
sion, 1940. One who does not seek nomination in 
a primary may seek office in either o f two ways,
(a) by filing nomination papers with the requisite 
number of signatures (La. Act No. 224, Section 50, 
Regular Session, 1940), or (b ) by having his name 
“ written in ”  at the final election (La. Act No. 224, 
Section 73, Regular Session). But neither o f these 
possibilities is open to a candidate who has been 
defeated in a primary. An explicit statute 
provides:

No one who participates in the primary 
• election of any political party shall have the 

right to participate in any primary election 
of any other political party, with a view of

6 “Political party” is defined “to be one that shall have cast 
at least five per centum of the entire vote cast in the last 
preceding gubernatorial election, or five per centum of the 
entire vote cast for presidential electors at the last preceding 
election, or at either of said elections.” La. Act No. 46, 
Section 3, Regular Session, 1940.

The Louisiana statutes referred to in this discussion are 
set forth in the Appendix, infra, pp. 50-58.



2 0

nominating opposing candidates, nor shall 
lie be permitted to sign any nomination 
papers for  any opposing candidate or can- 
dates; nor shall he be permitted to be 
himself a candidate in opposition to any one 
nominated at or through a prim ary election 
in which he took part.7

That this section prevents a “ write in”  vote for 
a candidate defeated at a prim ary is beyond ques­
tion in view of the statutory rule that a “ write in” 
vote is ineffective unless the individual voted for

7 La. Act No. 46, Section 87, Regular Session, 1940. For 
similar “anti-sore head” laws, see Cal. Elections Code (Deer- 
ing, 1939), § 3001; Colo. Stat. Ann. (1935), c. 59, § 32; Ky. 
Stat. Ann. (Baldwin’s Ed. 1936), § 1550-5a; Md. Ann. Code 
(Flack, 1939), Art. 33, § 85; Minn. Stat. (Mason, Supp. 
1940), § 601-3 (3); Neb. Comp. Stat. (Supp. 1939), § 32- 
1108; Ohio Code Ann. (Throckmorton, 1940), § 4785-69; 
Ore. Code Ann. (1930), Tit. 36, § 701; Wyo. Rev. Stat. Ann. 
(1931), c. 36, § 642. Compare Miss. Code Ann. (1930), 
§ 6231 and (Supp. 1938) § 2030; and see Ruhr v. Cowan, 
146 Miss. 870. In Texas the primary ballots contain a 
pledge to support the party nominee. Tex. Civ. Stat. 
(1936), Art. 3110. Similar pledges are required of candidates, 
in North Carolina and Oklahoma (N. C. Code Ann. (1939), 
§ 6022; Okla. Stat. Ann. (1937), Tit. 26, § 162), and of 
voters in Indiana and Missouri (Ind. Stat. Ann. (Burns, 
1933), § 29-510; Mo. Stat. Ann. (1932), § 10269). In 
Indiana and Oklahoma independent candidates must file 
their petitions prior to the date of the primary. Ind. Stat. 
Ann. (Burns, 1933), § 29-1006; Okla. Stat. Ann. (1937), 
Tit. 26, § 163. See Brooks, Political Parties and Electoral 
Problems (3d ed. 1933), 273; Merriam and Overacker, Pri­
mary Elections (1928), 130; Sait, American Parties and Elec 
tions (1939), 475-476; Sargent, The Law of Primary Elec­
tions, 2 Minn. L. Rev. 97,192, 201.



2 1

has declared his willingness to have his name “ writ­
ten in”  before the election.8 He is thus required 
“ to be himself a candidate” , within the meaning 
of the quoted statute. Nomination as an independ­
ent candidate would he barred, apart from  the 
prohibition of candidacy, by the rule that one may 
not secure a place on the ballot unless his nomina­
tion papers are filed with the Secretary o f State on 
or before the date o f the primary election. La. 
Act No. 224, Section 51, Regular Session 1940.

Thus a candidate defeated in the primary is le­
gally precluded from  running as an independent

8 La. Act No. 160, Section 1 (1932); La. Act No. 224, 
Section 73, Regular Session, 1940. It is true that in Lacombe 
v. Laborde, 132 La. 435 (1913), a blanket provision similar to 
that set out in the text, supra, was held not to prevent the 
election of a person who had been defeated in a Democratic 
primary for police juror, when his name was “written in” on 
a majority of the ballots in the final election. The court 
drew a distinction between the interest of the individual 
elected in promoting his candidacy, and the interest of the 
voters in electing him without solicitation. In the opinion 
of the court, the statute would have been more explicit had 
the Legislature intended to deprive the voters of their in­
terest. A similar view was later taken by a lower Louisiana 
court in Seal v. Knight, 10 La. App. 563 (Ct. of App., 1st 
Circuit, 1929). But cf. Payne v. Gentry, 149 La. 707 (1921). 
It is reasonable, however, to assume that the enactment, with­
in three years of the Seal case (Acts of 1932, No. 160, § 1), of 
the statutory requirement of a declaration of willingness 
was an answer to the Lacombe and Seal decisions. An 
affirmative act of “candidacy” is now necessary, and the 
legislative intention to prevent the election of an individual 
defeated at the primary seems clear.



2 2

in the final election, and those who voted for him in 
the primary have no way o f expressing their choice 
o f him in the general election. As a matter of 
law, then, the Louisiana prim ary is an integral 
part o f the process o f  choosing Representatives 
and the exercise o f  the constitutional right to 
choose is dependent upon an opportunity effec­
tively to register a choice at the primary election. 
I f  deprived of the right at the primary, the voter 
loses even the legal possibility o f vindicating his 
choice at the general election.

3. The Practical Significance of the Primary— 
In  the practical exercise o f the Louisiana citizen’s 
right to choose his Representative in Congress, the 
Democratic prim ary is not only an integral part 
o f the process; it is the determinative part.

This indictment alleges that “ since the adoption 
o f  the first prim ary election law by the State of 
Louisiana in the year 1900, the Democratic nom­
inee for the office o f  Congressman from  the Second 
Congressional District o f Louisiana has been 
elected”  (R . 2, 5 ). W hat the demurrer thus ad­
mits to be true in the particular case is judicially 
known to be true generally in a large part of the 
country. One political party, in those regions, 
commands the allegiance o f an overwhelming ma­
jority  o f the electorate; its candidates are elected 
invariably, i f  not perfunctorily (cf. White, C. L  
in Newberry v. United States, 256 U. S. 232, 267) 
and the real contest occurs in the election by which



23

its nominees are chosen.11 Indeed-, '6ne o f the m ajor 
reasons for the development o f the primary elec­
tion was that in “ the South, where nomination by 
the dominant party meant election, it was obvious 
that the will o f the electorate would not be ex­
pressed at all, unless it was expressed at the pri­
mary.”  Charles Evans Hughes, The Fate of the 
Direct Primary, 10 National Municipal Review 23, 
24. jEven in those parts o f the country where suc­
cess in the primary is not, as a matter o f fact, de­
terminative o f success at the general election, 
defeat in the primary almost invariably spells even­
tual failure to attain office because of the handi­
caps assumed in challenging the party organiza­
tion. As Mr. Justice Pitney said in Newberry v. 
United States, 256 U. S. 232, at 286: “ As a practi­
cal matter, the ultimate choice of the mass o f voters

9 Statistics compiled in 1927 showed that more than 60% 
of the members of Congress come from “stand-pat” districts. 
Based on seven elections from 1914 to 1926, the rate of change 
in the political affiliation of the successful Congressional can­
didate was only 1.6% in the South, 12% for the entire coun­
try. J See j Hasbrouck, Party Government in the House of 
Representatives (1927) 172, 176, 177. See also Merriam and 
Overacker, Primary Elections (1928) 267-269.

On tips great decrease in the vote cast in the general elec­
tion from that cast at the primary in the “one-party” areas of 
the country, see George C. Stoney, Suffrage in the South, 29 
Survey Graphic 163, 164 (1940). In Louisiana there were 
540,370 ballots cast ,in the 1936 Congressional primaries, 
as against 329,685 in the general election. In the 1938 Texas 
primaries, 34.5% of the adults voted, while in the general 
election the figure dwindled to 15%.

/

!$Jko;



24

is predetermined when the nominations have been 
made. ’ ’ 10

As a matter o f law, then, the Louisiana primary 
elections determine the candidates at the general 
election. As a matter o f unbroken practice, the 
Democratic prim ary election determines the victor 
at the general election. Either of these consid­
erations, we believe, demonstrates that the right 
to choose Representatives, secured by Section 2 
o f Article I  o f  the Constitution, reaches to the 
Louisiana primary.

4. The Process of Choosing Representatives — 
Section 2 o f Article I  gives to the qualified “ Peo­
ple o f the several States”  the right to choose their 
Representatives in Congress. Under Section 4 of 
Article I  the machinery by which this right is to 
be exercised is left to the states and to Congress: 
the states “ shall”  prescribe the “ Times, Places 
and Manner o f H olding elections for  Senators and 
Representatives”  and Congress “ may at anytime 
by Law make or alter such Regulations” . Pur­
suant to this authorization, the states and the 
Congress undoubtedly have wide discretion in the 
formulation of a practical system to ascertain the 
will o f the electorate. This discretion, of course, 
permits the conduct o f a preliminary contest m 
which the adherents o f political parties may de­
termine which o f  their number shall be a eandi-

10 See also George W. Norris, Why I Believe in the Direct 
Primary, 106 Ann. Amer. Acad., No. 195, p. 21.



25

date in the final test o f strength. But we insist 
that the right to choose, secured by the Constitu­
tion, is neither lost nor diluted because the state 
prefers to conduct its electoral process in two 
steps rather than in one.

The constitutional provision speaks neither of 
general nor o f primary elections. Section 2 o f 
Article I  uses the cover-all verb “ chosen * * *
by the People of the several States” . The cor­
relative right which it secures is equally general: 
it is the right to participate in the choice of R ep­
resentatives. I f  the machinery of choice involves 
two elections, primary and general, rather than 
one, the right to participate in the choice must 
include both steps.

This being the case, we think it clear that the 
right of a qualified person to vote in the Louisiana 
Congressional primary is an essential part o f the 
constitutionally protected right to choose. The 
Louisiana primary is conducted by the State 
at public expense,11 it is the subject o f minute stat-

11 La. Act No. 46, Section 85, Regular Session, 1940. The 
cost of the ballots and stationery and other supplies, and the 
“expenses necessary to the transmission and promulgation of 
the returns” are met by the state government. The respective 
parish and municipal units of government bear the neces­
sary expenses “incidental to the holding and conducting” of 
the primaries, “such as payment of commissioners of 
election, rent of polling places, expense of delivery of the 
ballot boxes and supplies to and from the polling places.”
Any other actual expenses necessary and incidental to the 

calling and holding of the said primary election shall be 
borne by the candidates participating therein.”



2 6

utory regulation,12 and it irrevocably eliminates 
candidates fo r  office who enter the primary but 
fail to obtain the party nomination.13 The right 
to vote in the general election for  persons who have 
participated in a prim ary is limited to a selection 
among the candidates whose names are on the bal­
lot; and the range o f choice is, therefore, ines­
capably narrowed by the prim ary which deter­
mines what those names shall be. Thus the 
prim ary election under Louisiana law is an inte­
gral part o f  the process o f  popular choice, and 
the right o f  a qualified person to participate in it 
effectively is protected by the constitutional pro­
vision which calls fo r  popular choice. But we do 
not rest alone on the legal nature o f  the primary; 
as a matter o f  fact, the Democratic primary in 
Louisiana is decisive of the election of Representa­
tives. Interference with the right to vote in the 
prim ary deprives the voter o f an opportunity to 
express a choice at the only stage in the process 
when the expression is o f  genuine significance.

12 La. Act No. 46, Regular Session, 1940. This act em­
bodies an over-all scheme for the organization of political 
parties in Louisiana (prescribing their committee structure 
and the manner in which the members of these committees 
are to be elected), the form of the primary ballot, the loca­
tion of polling places, and the hours of voting, the selection 

and compensation of commissioners, the deposit of the bal­
lots with the state courts, and the mailing of the recorded vote 
to the Secretary of State, the manner of contesting the 
results in the state courts, and the punishment of such 

offenses as bribery and tampering with the votes. Cf. 
Grovey v. Townsend, 295 U. S. 45, 50.

13 See pp. 18-22, supra.



27

We think that Article I, Section 2 is concerned 
with realities, not with form s; and that it neces­
sarily applies to the decisive phase o f the process 
by which Representatives are chosen. C f. United 
States v. W ood, 299 XJ. S. 123, 143, and the cases 
there cited. The Constitution provides an endur­
ing framework o f government, not a code of laws 
applicable only to the procedures o f a particular 
day. See McCulloch v. Maryland, 4 Wheat. 316, 
407, 415. The framers may not have anticipated 
the primary. But they gave to the qualified elec­
tors of the states the right to choose their Repre­
sentatives in Congress. It  is unthinkable that 
they intended to secure the shadow and not the 
substance of the right to choose, by leaving unpro­
tected the machinery by which the constitutional 
choice would in reality he exercised.14

Nothing in the history o f the Constitution prior 
to its adoption suggests that the right to choose was 
envisaged in a limited or artificial sense. The 
chief source o f serious disagreement at the Consti­
tutional Convention, so far as the suffrage was con­
cerned, had to do with the qualifications o f voters.

14 The difficulty of a purely historical application of Article 
I, Section 2 is graphically shown by the adoption in 
Nebraska of the unicameral legislature, rendering strictly in­
applicable the constitutional reference to “the most numerous 
Branch of the State Legislature.” The qualifications of the 
electors of United States Representatives from Nebraska have 
subsequently been something other than those precisely 
contemplated by the framers. See Orfield, The Unicameral 
Legislature in Nebraska, 34 Mich. L. Rev. 26.

300703—41--- 3



2 8

United States Documents Illustrative o f the Union 
o f the American States (1927) 487, 488, 489, 492, 
I t  was to avoid any obstacles to ratification which 
might have arisen from  this controversy that the 
Convention accepted the compromise embodied in 
Article I, Section 2. Story, Commentaries on tie 
Constitution o f the United States (Bigelow, 5th 
ed. 1891). § 584. In  the state ratifying conventions 
the debate shifted to the grant o f Congressional 
power to regulate national elections which is con­
tained in Article I, Section 4. It is true that six 
states included in their resolutions o f ratification 
the recommendation that a Constitutional amend­
ment be adopted to deny Congressional authority 
to regulate elections unless the states should refuse 
to provide for  them or should be unable to do so be­
cause o f  invasion or for  any other reason.10 But 
no such amendment was ever adopted and any lin­
gering doubt as to the unconditional power of Con­
gress to regulate the conduct o f national elections 
was removed in E x parte Siebold, 100 U. S. 371. 
Clearly neither o f these disputes is relevant to 
the nature and bounds o f the constitutionally pro­
tected right to choose. Indeed, the word “ elected 
in a draft o f the proposal which became Article I, 15

15 United States Documents Illustrative of the Union of 
the American States (1927): 1018-1019 (Massachusetts), 
1023 (South Carolina) ; 1024r-1025 (New Ham pshire);
1033 (Virginia); 1039-1040 (New York); 1056-1057 (Bliode 
Island). The North Carolina Convention i n c o r p o r a t e d  a 
similar recommendation in its resolution of August 1,1< 
(id. at 1050), but that State did not ratify the Constitution 
until November 21,1789 (id. at 1051).



29

Section 2, was eliminated by the Committee o f 
Detail in favor o f the seemingly broader word 
“ chosen” . 1 Farrand, Records of the Federal 
Convention (1911) 20, 46, 48-50; 2 id. 129, 151, 
178, 216, 565, 590, 651. Thus, the available histori­
cal indicia are certainly not incompatible with our 
view of the scope and implications of the Constitu­
tional right to choose Representatives.

5. The Gradwell, Newberry, and Grovey Cases. 
The District Court thought (R . 20-21) that the 
analysis advanced above is refuted by the decisions 
of this Court in United States v. Gradwell, 243 
U. S. 476, and Newberry v. United States, 256 U. S. 
232. W e believe that neither o f these decisions, 
nor that in Grovey v. Townsend, 295 U. S. 45, 
weakens the view for  which we contend.

(a) In the Gradwell case it was held that the 
right of candidates in a Republican Senatorial pri­
mary in West Virginia to have only qualified R e­
publican voters cast ballots and to have them vote 
only once was not protected by the federal Constitu­
tion and laws; and that an indictment charging a 
conspiracy to procure persons to vote illegally for  
one of the four candidates did not allege a violation 
of Section 19 o f the Criminal Code (U . S. C., Title 
18, See. 51). But whether “ in general a primary 
should be treated as an election within the meaning 
of the Constitution”  was expressly left undecided. 
The decision was squarely rested upon “ some strik­
ingly unusual features o f  the W est Virginia law 
under which the primary was held”  including the



30

fact “ that after the nominating primary, candi­
dates, even persons who have failed at the primary, 
may be nominated by certificate signed by not less 
than five per cent, o f the entire vote polled at the 
last preceding election”  (243 U. S. 487, 488). Thus 
the Gradwell decision dealt with the rights of can­
didates and not the rights o f voters, and even then 
turned on a feature o f the primary in question 
which is absent in the present case. The West 
Virginia primary did not as a matter o f law elimi­
nate candidates at the general election; nor are the 
Republican primaries as a matter of fact decisive 
o f  elections in W est Virginia.16

(b ) The N ewberry  case involved the constitu­
tionality o f the Federal Corrupt Practices Act of 
1910 in so far as it regulated the expenditures of a 
candidate fo r  Representative or Senator in his cam­
paign for  nomination. Four o f the Justices 
thought the statute unconstitutional on the broad

16A Republican candidate, Sutherland, was elected in the 
1916 Senatorial contest which was involved in the Gradwell 
case. His predecessor, Chilton, was a Democrat. His col­
league, at the time he took office, was Goff, a Republican. In 
the seven Senatorial elections in West Virginia from 1919, 
when Goff’s term expired, to 1937, the Democratic candidate 
was elected four times, the Republican three. Cong. Direc­
tory : 65th Cong., 1st Sess., 1st ed. 1917, p. 119; 64th Cong., 
2d Sess., 2d ed. 1917, p. 118; 65th Cong., 1st Sess., 1st ed. 
1917, p. 118; 66th Cong., 1st Sess., July, 1919, p. 122; 68t 
Cong., 1st Sess., 1st ed. 1923, p. 120; 69th Cong., 1st Sess-, 
1st ed. 1925, p. 125; 71st Cong., 1st Sess., 1st ed. 1929, p. 1A 
72d Cong., 1st Sess., 1st ed. 1931, p. 122; 74th Cong., 
Sess., 1st ed. 1934, p. 124; 76th Cong., 1st Sess., 1st ed. 1®, 
p. 124.



32

Thus a m ajority o f  the Court accepted the view 
that a primary is not a part o f the election of Sena­
tors, within the meaning o f Article I, Section 4, 
only so long as the choice of Senators was vested 
in the state legislatures by the Constitution; and 
even then four o f the Justices took the contrary 
view.

W e think the reasoning o f the minority of the 
Court in the Newberry case is correct: “ Election,”  
within the meaning o f Article I, Section 4, includes 
such preliminary steps in the process as the pri­
mary. I f  this were not so, neither the United States 
nor the states would have authority to regulate 
primaries for federal offices. Their power over 
this federal function, in the same manner and to 
the same degree as that of Congress, is derived from  
Article I, Section 4 ; this is not one o f the powers 
reserved to them by the Tenth Amendment. And, 
in any event, under Article I, Section 8, the regu­
lation of primaries is within the power of Congress

18 “If the preliminary processes of such an election are to 
be treated as something so separate from the final choice 
that they are not within the power of Congress under this 
provision, they are for the same reason not within the power 
of the States, and, if there is no other grant of power, they 
must perforce remain wholly unregulated. * * * For
the election of Senators and Representatives in Congress is 
a federal function; whatever the States do in the matter they 
do under authority derived from the Constitution of the 
United States. The reservation contained in the Tenth 
Amendment cannot properly operate upon this subject in 
favor of the state governments * * *•” (Mr. Justice
Pitney in Newberry v. United States, 256 U. S. 232, at 280- 
281.)



31

ground stated in the opinion o f Mr. Justice Mc­
Reynolds that the power o f Congress under Article 
I, Section 4, “ to make or alter”  regulations as to 
the times, places, and manner o f holding elections 
fo r  Senators and Representatives did not extend to 
the regulation o f  party primaries. Chief Justice 
W hite, Mr. Justice Pitney, Mr. Justice Brandeis, 
and Mr. Justice Clarke, though they agreed that the 
conviction should be reversed fo r  errors in the 
charge, held that the prim ary is an election within 
the meaning o f the express grant o f  Congressional 
power; and that, even i f  it is not, Congress was 
authorized to conclude that the regulation o f pri­
mary campaigns for  federal offices was necessary 
and proper to safeguard the representative govern­
ment for  which the Constitution provides. On the 
issue of constitutionality Mr. Justice McKenna thus 
cast the decisive vote. He concurred in the opinion 
o f  Mr. Justice McReynolds “ as applied to the stat­
ute under consideration which was enacted prior 
to the Seventeenth Amendment,” 17 * hut he specifi­
cally reserved “ the question o f the power o f Con­
gress under that Amendment”  (256 U. S. at 258).

17 The opinion of Mr. Justice McReynolds observed that 
the statute “antedates the Seventeenth Amendment and must 
be tested by powers possessed at the time of its enactment”
and that a “concession that the Seventeenth Amendment 
might be applicable in this controversy if assisted by ap­
propriate legislation would be unimportant since there is 
none” (256 U. S. at 254-255). But th'e opinion as a whole 
does not limit the conclusion stated to the situation prior to 
the Amendment.



33

to devise measures which are necessary and proper 
to safeguard the final election and the institution of 
representative government.19

But even if  these views o f the minority were 
rejected, we think it clear that the decision of the 
majority o f the Court was no determination o f the 
status o f a Congressional primary— or even o f a 
Senatorial primary since the adoption of the Sev­
enteenth Amendment. The Court did not have 
before it the question o f whether a primary is an 
integral part either o f a Congressional election, 
within the meaning of Article I, Section 4, or o f the 
process by which Representatives are chosen by the 
people, within the meaning o f Article I, Section 2. 
Moreover, the primary involved in the Newberry 
case differed from  the Louisiana primary in the 
same way as did the W est Virginia primary in­
volved in the Gradwell case. Newberry’s brief in 
this Court emphasized the point that “ Electors are 
free to go to the polls and cast their votes for  any­
one they please and the election would be complete

19 In Burroughs and Gannon v. United States, 290 U. S. 
534, this Court sustained the power of Congress to regulate 
by the Corrupt Practices Act of 1925 the expenditures of 
national committees for the purpose of influencing the selec­
tion of Presidential electors in two or more states. But the 
selection of Presidential electors is, in form at least, only 
a prelude to the election of the President and Vice President. 
Indeed, in Walker v. United States, 93 F. (2d) 383, 389 
(C. C. A. 8th), certiorari denied, 303 U. S. 644, rehearing 
enied, 303 U. S. 668, it was held that Section 19 is inappli- 

ca le to the alteration of ballots for presidential electors, 
on the ground that they “are officers of the state and not 
federal officers.”



34
without any 'nom inations’ ”  (Newberry v. United 
States, No. 559, October Term, 1920, Brief for 
Plaintiffs in Error, p. 54). In  Louisiana, as we 
have said, electors are not " fr e e  to cast their votes 
for  anyone they please” ; candidates eliminated at 
the primary are eliminated once and for  all. Fi­
nally, it may be observed that the issue in the 
N ewberry  ease was the power o f Congress to regu­
late the campaign for  nomination, and not the 
source o f the right to vote fo r  members o f the House 
o f Representatives in the prim ary itself. The de­
nial o f Congressional power over the campaign 
preceding the prim ary would not necessarily in­
volve a denial that the right to vote in the primary 
is a part o f the process of popular choice; and it 
is fo r  that reason that we contend that the right is 
secured by Article I, Section 2.

(c )  The present problem is unaffected by the 
decision o f this Court in Grovey v. Townsend, 295 
U. S. 45. It is true that in that case the rule of the 
Democratic party excluding negroes was held not 
to infringe rights secured by the Constitution of 
the United States. But it was not true in Texas 
as it is in Louisiana that the state had made the 
primary a part o f the electoral process."0 More 
over, what Article I, Section 2 secures is the right 
to choose. The implicit premise of the Grovey 
decision is that the negroes excluded from the 
Democratic primary were legally free to record 20

20 See p. 18, note 22, and pp. 25, 26, notes 11,12, supra.



35

their choice by joining an opposition party or by 
organizing themselves. In  the present case the 
voters exercised the right to choose in accordance 
with the contemplated method; and the wrong al­
leged deprived them o f an opportunity to express 
their choice in any other way.

6. The Congressional Practice .— That Congress 
regards the primary as an integral part o f the 
process of election is demonstrated not only by the 
enactment of the statute involved in the Newberry 
case but, more significantly, by the fact that both 
before and after the N ewberry  decision, it has in­
quired into frauds at primaries as well as at the 
general elections in judging the “ Elections, Re­
turns and Qualifications of its own Members”  
under Article I, Section 5.21

In none of the cases decided after Newberry v. 
United States has Congress doubted its jurisdic­
tion to investigate and determine the existence of 
frauds in primaries. The Senate continued, after 
the decision, to consider Henry F ord ’s challenge to 
Senator Newberry’s seat and inquired into New­
berry’s conduct in the primary election. See S. 
Rep. No. 277, 67th Cong., 1st Sess. Based upon 
that conduct, a minority report, submitted by Sen-

21 Grace v. Whaley, H. Rep. No. 158, 63d Cong., 2d Sess.; 
Teddy v. May-field, S. Rep. No. 973, 68th Cong., 2d Sess.; 
Wilson v. Vare, S. Rep. No. 1858, 70th Cong., 2d Sess., S. 
Rep. No. 47, 7lst Cong., 2d Sess., and S. Res. Ill, 7lst Cong., 
2d Sess. Cf. opinion of Mr. Justice McReynolds in New­
berry v. United States, 256 U. S. 232, 258; and the opinion 
of Mr. Justice Pitney, 256 U. S. at 284-285.



36
ators Pomerene, K ing, and Ashurst, recommended 
that Newberry should not be seated. Moreover, 
in February, 1923, the Law Committee of the Na­
tional Republican Congressional Committee re­
ported to Congress its belief that despite the 
N ewberry  decision, the Corrupt Practices Act was 
still in force as to Representatives and that candi­
dates were required to file sworn statements of 
campaign expenditures in primaries (64 Cong. 
Rec. 4567, 67th Cong., 4th Sess.). In  conformity 
with this theory, candidates for  Congress contin­
ued to file reports o f expenditures until the repeal 
o f  the Corrupt Practices A ct in 1925. Cannon’s 
Precedents o f the H ouse o f Representatives 
(1936), Sec, 69.

Congressional practice has weight in determin­
ing the meaning of constitutional provisions. But 
it is especially significant where the practice in­
volves a Congressional interpretation of the Con­
stitution in a field in which Congress has an 
autonomous power. Cf. Smiley v. Holm, 285 U. S. 
355, 369; see also Mr. Justice Pitney in Newberry 
v. United States, 256 U. S. 232, 284-285.

I I

VOTERS IN A PRIMARY ELECTION ARE DENIED THE EQUAL 
PROTECTION OF THE LAWS BY STATE OFFICERS WHO 
REFUSE TO COUNT THEIR VOTES AS CAST AND COUNT 
THEM IN FAVOR OF AN OPPOSING CANDIDATE

Even i f  the right o f a qualified person to have 
his vote in the Louisiana Congressional primary



37

counted as cast is not secured and protected by 
Article I, Section 2, we think the voter is protected 
by the Fourteenth Amendment against the injury 
and deprivation alleged in the indictment.

In receiving and counting ballots and certifying 
tbe results o f the primary election, the Commis­
sioners of Election are state officers exercising 
state power in connection with a function which 
the state has assumed to conduct.22 Their action 
under color o f their office, even though contrary 
to state law, constitutes state action within the 
meaning o f the Fourteenth Amendment. The 
point was settled as long ago as E x parte Virginia, 
100 U. S. 339, 347, that whoever “ by virtue of pub­
lic position under a State government, deprives 
another of property, life, or liberty, without due 
process of law, or denies or takes away the equal 
protection o f the laws, violates the constitutional 
inhibition; and as he acts in the name and for the 
State, and is clothed with the State’s power, his 
act is. that of the state.” / S e e  also Iowa-Des 
Moines Bank v. Bennett, 284 U. S 239. 945-241! r 
Missouri ex rel. Gaines v. Canada,
343; Mosher v. City of Phoenix, 28"
cago, Burlington By. v. Chicago,
233-234.

It is also clear that Congress may make criminal 
the acts o f state officials which effect a denial o f

22 The method of their selection is prescribed by statute 
and their compensation is provided by the local units of the 
state government. Act No. 46, Sections 35 and 61, Regular 
Session, 1940. See also notes' 11, 12, supra, pp. 25, 26.



38

equal protection (E x parte Virginia, supra, 100 
IJ. S. at 348; Guinn v. United States, 238 U. S. 347; 
and cf. Nixon v. Herndon, 273 U. S. 536), and that 
the equal protection clause prohibits unjustifiable 
discrimination by the state with respect to voting 
at prim ary elections (Nixon v. Herndon, supra; 
Nixon v. Condon, 286 U. S. 73).

In  the light o f these settled principles, we think 
it plain that state officials in charge o f a primary 
election who wilfully alter the ballots cast for two 
o f  the candidates and count them as cast for the 
third, deprive the voters whose ballots are thus 
nullified o f the equal protection of the laws. They 
are discriminatorily denied the right to have their 
choice recorded, by reason o f the nature of the 
choice they have made. No argument is needed to 
show that a state statute which provided for such 
discrimination in the counting o f  ballots would be 
a denial o f equal protection. The discrimination 
is no less forbidden where it is wilfully practiced 
by administrative officers clothed with the power 
o f  the state. The Election Commissioners are in 
no different position than was the judge selecting 
jurors in Ex parte Virginia or the tax collector in 
Iowa-Des Moines Bank v. Bennett.

It  is obviously without significance that the arbi­
trary discrimination was not based upon race or 
color (cf. United States v. Beese, 92 U. S. 214), foi 
the day is long past when such discriminations 
measure the scope o f  the equal protection clause



(Iowa-Des Moines Bank v. Bennett, supra; Hart­
ford Steam Boiler Inspection d? Insurance Go. v. 
Harrison, 301 U. S. 459; cf. Buchanan v. Warley, 
245 U. S. 60, 76).

It is equally immaterial that the arbitrary dis­
crimination was practiced on the single occasion 
alleged; the denial o f equality need not be habitual 
(cf. McCabe v. Atchison, T. & S. F. By. Co., 235 
U. 8. 151, 161; Missouri ex rel. Gaines v. Canada, 
305 U. S. 337, 351). W hile in cases involving 
administrative inequalities, the unjustifiable dis­
crimination which deprives o f equal protection 
has been characterized as “ systematic”  (see e. g. 
Iowa-Des Moines Bank v. Bennett, 284 U. S. 
239, 245) or “ adopted as a practice”  ( Chicago G.
W. By. v. Kendall, 266 U. S. 94, 99), we take this 
to mean that the inequality must be produced by 
conscious and deliberate discrimination, not that it 
must be repetitious. The inadvertent inequalities 
produced by state officials in the administration o f  
state laws are inherent in the legal process and, 
however unjustifiable, do not deprive of equal pro­
tection (cf. Cumberland Coal Co. v. Board, 284 
Lh S. 23, 25). But when inequality is designedly 
produced by state officials in the exercise o f state 
administrative power, the discrimination must 
meet the same constitutional test as a statute by 
which the particular inequality is articulately 
ordained.



40
It  is o f no consequence that the indictment does 

not count hi terms upon the Fourteenth Amend­
ment and the right o f  the voters to equal pro­
tection o f the laws. The charge is laid in the lan­
guage o f the statute and specifies as the right 
“ secured”  and “ protected”  hy the Constitution 
the right o f the voters whose ballots were altered 
to have their votes counted as cast. I f ,  as we con­
tend, the infringement of that right by the alleged 
acts o f  the defendants constitutes a denial of equal 
protection, it seems clear that the District Court 
erred in holding that the right is not “ secured” 
and “ protected”  by the Constitution of the United 
States.

I l l

SECTIONS 19 AND 2 0 OF THE CRIMINAL CODE ABE 
OTHERWISE APPLICABLE TO THE ACTS ALLEGED IN 
THE INDICTMENT
W e have shown that the right of the voters to 

have their votes counted as cast is “ secured”  and 
“ protected”  by the Constitution of the United 
States. The remaining question is whether Sec­
tions 19 and 20 o f the Criminal Code are otherwise 
applicable to the acts alleged in the indictment. 
W e contend that they are.

1. The Generality o f the Statutory Words.— 
The District Court emphasized the fact that pri­
mary elections were not in existence in 1870 when 
Sections 19 and 20 were first enacted. It con­
cluded, quoting United States v. Gradwell, 243



41

U. S. 476, 488-489, that the application o f the stat­
ute would result in “ stretching old statutes to 
new uses, to which they are not adapted and for 
which they were not intended. ’ ’

But the statute is addressed in “ sweeping gen­
eral words”  to conspiracies against and depriva­
tions of federal rights. United States v. Mosley, 
238 U. S. 383, 387-388. Section 19 has been ap­
plied in the past to rights as diverse as the right 
to inform of a federal crime (In  re Quarles and 
Butler, Petitioners, 158 U. S. 532; Motes v. United 
States, 178 U. S. 458) to be secure in federal cus­
tody (Logan v. United States, 144 IT. S. 263), to 
stand by a federal homestead ( United States v. 
Waddell, 112 IT. S. 76), to vote for a member o f the 
House of Eepresentatives ( United States v. Mosley, 
238 IT. S. 383) and, where the denial violates the 
Fifteenth Amendment, to vote for state officers 
(Guinn v. United States, 238 IT. S. 347). The 
only general limitation on the scope o f the statute 
recognized by this Court is that the federal right 
be “ definite”  and “ personal”  as distinguished 
from a right “ common to all that the public shall 
be protected against harmful acts”  ( United States 
v. Bathgate, 246 IT. S. 220, 226). The “ definite”  
and 1 ‘ personal ’ ’ character o f the right to vote has, 
however, been most emphatically upheld ( United 
States v. Mosley, supra;  see United States v. Bath­
gate, 246 IT. S. at 227; cf. Nixon  v. Herndon, 273 
IT. S. 536; and the opinion o f Mr. Justice Frank-



42
furter in Coleman v. Miller, 307 XT. S. 433, 460, at 
469).

Accordingly, we think the fact that primary 
elections were unknown in 1870 is without sig­
nificance. The applicable principle was recently 
stated by this Court: “ Old crimes * * * may
be committed under new conditions * * *•
W hile a statute speaks from  its enactment, even a 
criminal statute embraces everything which sub­
sequently falls within its scope”  (Browder v. 
United States, No. 287, present Term, p. 4). See 
also Hague v. C. I. O., 307 IT. S. 496, especially the 
opinion o f Mr. Justice Stone at pp. o26—527. It is 
no more material that prim ary elections were un­
known when the statute was passed than it would 
be that a city ordinance which worked a depriva­
tion of federal rights was enacted after 1870 or, 
indeed, that the city which enacted the ordinance 
was not established until after that time. Nor is 
there significance in the fact that in 1894 Congress 
repealed the companion provisions of the statute 
dealing with specific irregularities in elections. 
United States v. Mosley, supra, definitely held that 
the repeal did not place the right to vote outside of 
the general protection which the statute “ most rea­
sonably affords. ’ ’ See also Nixon v. H erndon, 273 
U. S. 536.

In  short, Sections 19 and 20 o f the Criminal Code 
protect generally the exercise o f rights secured or



43
protected by the Constitution, whether the particu­
lar occasion for their exercise or the method by 
which they are infringed existed in 1870 or not.

2. Section 19 is Applicable to the Denial of 
Equal Protection by State Officers.— The first 
count of the indictment rests upon Section 19 of 
the Criminal Code (U . S. C., Title 18, Section 51), 
which is in terms applicable to the acts o f individ­
uals. It may be argued that the first count cannot 
be sustained, therefore, solely on the basis o f  the 
theory that the voters were deprived o f  rights se­
cured by the Fourteenth Amendment, since the 
Amendment applies only to the acts o f state o f­
ficers. The District Court did not place this in­
terpretation upon Section 19, but the issue is 
doubtless open on this appeal. United States v. 
Gilliland, No. 245, decided February 3, 1941.

One Circuit Court o f  Appeals has held that Sec­
tion 19 is inapplicable to a conspiracy by election 
officials to deprive negroes o f  the right to vote at a 
state election on the ground that the statute is not 
confined to cases o f state action and consequently is 
not “ appropriate”  legislation to enforce a constitu­
tional limitation on state action alone. Karem  v. 
United States, 121 Fed. 250 (C. C. A. 6 th ) ; cf. 
United States v. Reese, 92 U. S. 214. W e find no 
basis for this interpretation in the language o f the 
statute or in its legislative history.23 The prohibi-

_23 See 91 Cong. Globe 3611-3612, 3679; Flack, The Adop­
tion of the Fourteenth Amendment (1908), 219 et seq.

300703—41-----4



44

tion o f a conspiracy to injure a citizen “ in the free 
exercise or enjoyment o f any right or privilege 
secured to him by the Constitution”  o f the United 
States includes a conspiracy by persons to use state 
power to injure rights which are safeguarded 
against state action. Nothing in the enabling 
clause o f  the Fourteenth Amendment suggests that 
legislation is not “ appropriate”  to enforce the 
Amendment i f  it deals not only with rights guar­
anteed by the Amendment against state action but, 
also with rights protected by other constitutional 
provisions against individual action as well.

The point, in any event, was necessarily settled 
sub silentio in Guinn v. United States, 238 U. S. 
347, 368, which sustained the applicability of Sec­
tion 19 o f the Criminal Code to state election 
officials who conspired to deprive negroes of rights 
guaranteed by the Fifteenth Amendment, which, 
o f  course, is also directed against state action
alone.

3. The Alleged Acts of the Defendants Were 
Done Under “ Color of Law,”  Within the Meaning 
of Section 20.— Section 20 protects “ rights, priv­
ileges, or immunities secured or protected by the 
Constitution and laws of the United States 
against w illful deprivation “ under color of any law, 
statute, ordinance, regulation, or custom” . It was



45

enacted initially to enforce the Fourteenth Amend­
ment.24 W e see no reason why it should be held to 
have a narrower scope than the Amendment itself. 
Accordingly, we think that any conduct which 
would constitute “ state action,”  within the mean­
ing of the Amendment, is action “ under color o f 
law, ’ ’ within the meaning o f the statute; that ‘ ‘ color 
of authority”  and “ color o f law ”  are equivalent 
terms. That the alleged conduct o f the defendants 
was state action for  purposes o f the Amendment 
has already been demonstrated {supra, pp. 36-40). 
In two of the four cases in which, so far as we know, 
Section 20 has been invoked, it has been held that 
the acts of the officials alleged were perform ed “ un­
der color of law, statute, ordinance, regulation, or 
custom”  even though they were contrary to the 
laws of the state.25 Section 20 does not require

24 89 Cong. Globe 1536; 91 Cong. Globe 3480, 3658, 3690; 
92 Cong. Globe 3807-3808, 3879; Flack, The Adoption of the 
Fourteenth Amendment (1908), 219, 223.

25 United States v. Sutherland (N. D. Ga.), demurrer to 
indictment overruled, July 31, 1940 (unreported) (police 
officer extorting confession by torture) ; United States v. 
Cowan (E. D. La.), demurrer to indictment overruled, 
August 14, 1940 (unreported) (police officer assaulting per­
son taking photographs of proceedings at a polling place). 
See Eeport of the Attorney General (1940), 77. See also 
United States v. Buntin, 10 Fed. 730 (C. C. S. D. Ohio), 
and United States v. Stone, 188 Fed. 836 (D. Md.). And 
compare Hague v. Committee for Industrial Organization, 
101 F. (2d) 774, 781, 788, 789, 790 (C. C. A. 3d), affirmed, 
307 U. S. 496, where the same conclusion was reached with 
respect to similarly worded statutes.



46
that the defendant’s conduct be sanctioned by a par­
ticular law or statute ; it is enough that his acts 
are done in reliance upon his official power. In 
the present case, on the facts alleged, the defend­
ants acted in reliance upon their official position 
in conducting the election, counting the votes, and 
certifying the returns. Moreover, the statute ap­
plies only to willful violations. W here action is 
based upon the express mandate o f state law, it 
might he exceedingly difficult to establish willful­
ness against a defense o f mistake o f  law. I f  the 
statute were limited to such cases, it would, there­
fore, have only the most trivial scope. We see 
no justification for  thus limiting the ambit of a 
statute which, on its face, is designed to confer 
broad protection upon the enjoyment of federal 
rights. Cf. Holmes, J., in United States v. Mosley, 
238 II. S. 383, 388.

4. Section 20 is not Limited to Deprivations on 
account of Race, Color, or Alienage.— That Section 
20 is not limited to the deprivation o f federal rights 
on account o f color or race is demonstrable as a 
matter o f grammar. The statute26 can be sensibly

26 “Whoever, under color of any law, statute, ordinance, 
regulation, or custom, willfully subjects, or causes to be 
subjected, any inhabitant of any state, territory, or district 
to the deprivation of any rights, privileges, or immunities 
secured or protected by the Constitution and laws of the 
United States, or to different punishments, pains, or penal­
ties, on account- of such inhabitant being an alien, or by 
reason o f his color, or race, than are prescribed for the pun­
ishment of citizens, shall be fined not more than $1,000, or 
imprisoned not more than one year, or both.”



47

construed only as forbidding the subjection of in­
habitants (1 ) “ to the depriviation o f any rights, 
privileges, or immunities secured or protected by 
the Constitution and laws o f the United States” ; 
or (2) “ to different punishments, pains, or penal­
ties, on account of such inhabitant being an alien, 
or by reason of his color, or race, than are pre­
scribed for the punishment o f citizens” . The ref­
erence to color and race is limited to the pro­
hibition of “ different punishments, pains, or 
penalties,”  as the final words o f the clause make 
clear. To read “ than are prescribed for the pun­
ishment of citizens”  as a part o f the initial pro­
hibition of deprivation o f federal rights, would 
render Section 20 nonsensical. This can be 
avoided only by reading the latter part o f the sec­
tion, relating to punishments,' as independent of 
the former, relating to federal rights.27

CONCLUSION

For the foregoing reasons, we respectfully sub­
mit that the District Court’s construction of Sec­
tions 19 and 20 o f the Criminal Code was errone­
ous; that the first and second counts of the indict­
ment allege violations o f the statutes; and that the 
judgment sustaining the demurrer should be re-

2| On demurrer to the indictment in United, States v. 
Cowan, supra, p. 45, note 25, this objection was raised and 
the interpretation which we urge was sustained.



48
versed and the cause remanded for further 
proceedings.

F rancis B iddle,
Solicitor General. 

W endell B erge,
Assistant Attorney General. 

W arner W . Gardner, 
H erbert W echsler,

Special Assistants to the Attorney General. 
J ames E. D oyle,
A lfred B . T eton,

Attorneys.
M arch 1941.



A P P E N D IX

\

The Constitution o f the United States:
Article I, Section 2 : “ The House o f Rep­

resentatives shall be composed o f Members 
chosen every second Year by the People o f 
of the several States, and the Electors in 
each State shall have the Qualifications 
requisite for  Electors of the most numerous 
Branch o f the State Legislature.”

* * * * *

Article I, Section 4 : “ The Times, Places 
and Manner o f  holding Elections fo r  Sena­
tors and Representatives, shall be pre­
scribed in each State by the Legislature 
thereof; but the Congress may at any time 
by Law make or alter such Regulations, ex­
cept as to the Places o f chusing Senators.”  

* * * * *
Amendment X T V : “  * * * No State 

shall make or enforce any law which shall 
abridge the privileges or immunities o f 
citizens o f the United States; nor shall any 
State deprive any person o f life, liberty, or 
property, without due process o f law; nor 
deny to any person within its jurisdiction 

______the equal protection o f the laws.” ________
ion 19 of the Criminal Code (U. S. C., Title 

18, Sec. 51):

I f  two or more persons conspire to injure, 
oppress, threaten, or intimidate any citizen 
in the free exercise or enjoyment o f any 
right or privilege secured to him by the 
Constitution or laws o f the United States, or 
because o f his having so exercised the same, 
or if two or more persons go in disguise

(49)



50

on the highway, or on the premises of an­
other, with intent to prevent or hinder his 
free exercise or enjoyment of any right or 
privilege so secured, they shall be fined not 
more than $5,000 and imprisoned not more 
than ten years, and shall, moreover, be there­
after ineligible to any office, or place of hon­
or, profit, or trust created by the Constitu­
tion or laws of the United States. (R. S. 
§ 5508; Mar. 4, 1909, c. 321, § 19, 35 Stat. 
1092.)

Section 20 o f the Criminal Code (U . S. C., Title 
18, Sec. 52) :

Whoever, under color o f any law, statute, 
ordinance, regulation, or custom, willfully 
subjects, or causes to be subjected, any in­
habitant o f any State, Territory, or District 
to the deprivation o f any rights, privileges, 
or immunities secured or protected by the 
Constitution and laws of the United States, 
or to different punishments, pains, or pen­
alties, on account o f such inhabitant being 
an alien, or by reason o f  his color, or race, 
than are prescribed fo r  the punishment of 
citizens, shall be fined not more than $1,000, 
or imprisoned not more than one year, or 
both. (R . S. § 5510; Mar. 4, 1909, c. 321, 
§ 20, 35 Stat. 1092.)

La. A ct No. 46, Regular Session, 1940:
Section 1. B e it enacted by the Legisla­

ture o f Louisiana, that all political parties 
shall make all nominations of candidates for 
the United States Senate, Members of the 
House o f Representatives in the Congress ol 
the United States, all State, district, paro­
chial and ward officers, Members of the ben- 
ate and House o f Representatives ot the 
State o f Louisiana, and all city and ward



51

officers in all cities containing more than five 
thousand population, by direct primary elec­
tions.

That any nomination by any political 
party of any person for any o f  the aforesaid 
mentioned offices by any other method shall 
be illegal, and the Secretary of State is pro­
hibited from  placing on the official ballot 
the name of any person as a candidate for 
any political party not nominated in accord­
ance with the provisions o f  this Act. 

* * * * *
Section 3. The term “ political party,”  as 

used in this Act, is defined to be one that 
shall have cast at least five per centum of 
the entire vote cast in the last preceding 
gubernatorial election, or five per centum of 
the entire vote cast for presidential electors 
at the last preceding election, or at either 
o f said elections.

Section 4. A ll prim ary elections held by 
political parties, as defined herein, must be 
conducted and held under, and in compliance 
with, the provisions o f this Act.

[Section 5 provides that all political par­
ties shall be directed by an organization o f 
committees which are described and specified 
in detail. Among these committees is the 
Parish Committee for each parish in the 
state, which committee is to be “ composed 
of as many ward members as there are police 
jurors provided for  in such parish and five
(5) members at large, all o f  which members 
shall be elected in the same manner as mem­
bers of the State Central Committee; pro­
vided, however, that in the Parish o f Orleans 
said parish committee shall consist o f two
(2) members from  each ward in said 
parish.” ]

* * * * *



52

Section 15. The members o f  the Parish 
Executive Committee, as herein provided, 
shall be elected at the first primary election 
held in January, 1944,1 for  the nomination 
o f  State and parish officers, and shall be 
elected every four years thereafter. * * *. 

* * * * *
Section 19. The State Central Committee, 

as now organized and created, and all other 
committees, as now organized and created, 
and all officers o f the various committees 
heretofore created and now in existence, are 
hereby recognized and continued. All rules, 
regulations and requirements heretofore 
adopted by the State Central Committee or 
by any o f the committees organized under 
A ct 97 of the Legislature o f Louisiana for 
the year 1922, as amended, not in conflict 
with or contrary to the provisions of this Act, 
are hereby recognized as legal and valid, and 
shall continue in full force and effect until 
otherwise changed by the committees herein 
created, or authorized to be created.

* * * * *

Section 27. The qualifications of voters 
and candidates in prim ary elections, held 
under this Act, shall be the same as now re­
quired by the Constitution and election laws 
o f  this State fo r  voters at general elections 
and the further qualifications prescribed by 
the State Central Committee of the respec­
tive political parties coming under the pro­
visions o f this Act.

* * * * *

Section 29. Only those who have so de­
clared their political affiliation shall be per­
mitted to become candidates or to vote in any 
primary election o f any political party, as 
defined in this Act.

1 See note 2, infra, p. 56.



53

Section. 30. Any person desiring to be­
come a candidate in any primary election 
held under the provisions o f  this A ct shall, 
within twenty days for  State and District 
officers, and within ten days for parochial, 
municipal and ward officers, except as other­
wise provided herein, from  and after the 
issuance of the call o f the said committee for 
the said primary election, file with the respec­
tive officers hereinafter designated, written 
notification of his intention to become a can­
didate at such primary, accompanied by a 
declaration, under oath, that to the best o f 
his knowledge and belief he is a duly quali­
fied elector under the Constitution and laws 
of this State; that he is a member of the 
party calling said primary election, and that 
he possess the qualifications required by the 
State Central Committee o f  such party.

Section 31. (a ) Every candidate for nom­
ination as United States Senator, member 
of Congress * * * shall file written
notification and declaration o f candidacy, as 
provided herein, with the Chairman o f the 
committee calling the primary, and as evi­
dence of their good faith, shall, at the time 
of filing such notice and declaration of can­
didacy, deposit with the Chairman of the 
committee calling the primary election, the 
sum of One Hundred and No/100 ($100.00) 
dollars.

* * * * *

Section 35. The expense of primary elec­
tions held under this Act shall be appor­
tioned and defrayed as follows:

(a ) The expense o f  printing ballots and 
the furnishing o f the necessary stationery 
and other election supplies for all primary 
elections held under the provisions o f this 
Act, except as hereinafter otherwise pro­
vided, and also all expenses necessary to the



54

transmission and promulgation of the re­
turns, shall be paid by the State of Loui­
siana, in the same manner as for general 
elections.

(b ) The necessary expenses incidental to 
the holding and conducting o f  the said pri­
mary elections, such as payment of com­
missioners o f  election, rent of polling places, 
expense of delivery o f  the ballot boxes and 
supplies to and from  the polling places, shall 
be borne by the respective parishes, cities 
and towns, and the respective police juries, 
or municipal authorities shall provide, by 
ordinance, fo r  their payment.

(e ) Any other actual expenses necessary 
and incidental to the calling and holding of 
the said prim ary election shall be borne by 
the candidates participating therein.

[Sections 36-39 provide that the ballot in 
Congressional primaries shall be prepared 
by the Secretary o f State and shall be 
printed according to a specified form. Sec­
tion 38 provides:

“ A t the bottom of the ballot and after 
the name o f the last candidate shall be 
printed the following, viz.: ‘ By casting
this ballot I  do pledge myself to abide by 
the result o f  this primary election and to 
aid and support all the nominees thereof in 
the ensuing general election.’

“ Should any voter scratch out, deface or 
in any way mutilate or change the pledge 
printed on the ballot, he shall not be consid­
ered or held to have repudiated or to have 
refused to take the pledge, but shall, conclu­
sively, be presumed and held to have 
scratched out, defaced or mutilated or 
changed same for the sole purpose of iden­
tifying his ballot; and accordingly such bal­
lot shall be marked ‘ Spoiled Ballot’ and shall 
not be counted.” ]

* * * * *



55

[Sections 53-57 specify the location o f the 
polling places and the hours during which 
they must be open.]

Section 58. No voter shall be allowed to 
take part in any prim ary who shall not 
have registered at least thirty (30) days 
prior to the date o f the primary election 
held under this Act. Seven days prior to 
every primary election, the Registrar of 
Voters throughout the entire State shall 
make a complete list o f  all registered voters 
in every voting precinct in the parish regis­
tered as affiliated with the party holding 
the primary, certify to same, and at least 
five (5 ) days before the primary election 
deliver the same to the respective parish 
committees o f the party or parties holding 
the said primary election, without any cost 
or charge whatsoever. The said list shall 
not contain the name o f any elector not a f­
filiated with the party holding the said 
primary election. * * *

* * * * *
[Section 61 provides that primaries are to 

be conducted by five commissioners o f elec­
tion at each polling precinct, who shall be 
commissioned in each parish by the chair­
man or the vice-chairman of each parish 
committee. They are to possess “ the same 
qualifications as are required of voters in 
the ward in which they shall reside. ’ ’ Their 
compensation is to be $5. They are to be 
selected in this fashion: the “ local”  candi­
dates in each parish in the state submit a 
given number of names o f persons whom 
they desire to be commissioned, and the 
names of five o f these persons are chosen by 
lot. (In  Section 34, “ local candidates”  are



56

defined as: “  (a ) candidates for  membership 
in either house o f the Legislature of Louisi­
ana, (b ) candidates fo r  any parish, ward 
or municipal office, except those o f Justice 
o f the Peace or Constable.” ) This draw­
ing o f names is to be conducted by the parish 
committee.2]

* * * * *

2 Presumably the “ parish committee” mentioned in this 
section is the “parish committee”  who^e formation is regu­
lated by Section 15\>f this Act No. ,46, supra. However, 
Section 15 provides that the members of this parish com­
mittee are to be elected’hat the first primary election held in 
January, 1944” . Consequently, the selection of election 
commissioners at the election involved in this case must have 
been under Sections 2675 afid 267$ of La. Gen. Stat. Ann. 
(Dart, 1939). Section 2678 declares:

“ The state central committee arid all other subordinate or 
local committees of all the political parties coming within 
the provisions of this act, as now constituted (except the 
present chairmen of the state central committees) are hereby 
recognized as the legal committees and the governing au­
thorities of the said political parties.

“The members thereof shall hold their offices as members 
of the said committees for the term for which they have been 
already elected. They are authorized to make any rules and 
regulations for their government not in conflict with any 
provisions of this act. The state central committees of all 
political parties, as now constituted, shall direct and order 
the manner in which all subordinate or local committees 
shall be organized and constituted, fix their number, regu­
late their term of office, the time o f their election, provided 
same shall not be for a longer term than four years; pro­
vided, however, that the members of all committees shall be 
elected in a direct primary except as is herein provided for 
the election of committeemen at large, and, except where a 
vacancy occurs in the membership of any committee for any 
cause, in which event the committee on which the vacancy



57
S e c t io n  87. No one who participates in 

the primary election of any political party 
shall have the right to participate in any 
primary election o f any other political 
party, with a view o f nominating opposing 
candidates, nor shall he be permitted to sign 
any nomination papers for any opposing 
candidate or candidates; nor shall he be 
permitted to be himself a candidate in op­
position to any one nominated at or through 
a primary election in which he took part.

La. Act No. 224, Regular Session, 1940:
S e c t io n  48. That all nominations by po­

litical parties recognized by law shall be as 
provided in the primary election laws as 
now existing, or as may hereafter be passed 
excepting only presidential electors, who 
shall be chosen and nominated in any man­
ner determined by a resolution o f the State 
Central Committee of the respective 
political parties.

* * * * *
S e c t io n  73. * * *. I f  he [the voter]

desires to vote for a person other than a 
nominee o f  political parties, he must write 
in his own handwriting the name o f such 
person in the space provided fo r  such pur­
pose, with a pencil having black lead, and 
stamp with the official stamp the white 
square in the voting space at the right of 
the name so written.

occurs shall have the authority to fill same, except the state 
central committeemen at large.”

Section 2675 provides that election commissioners shall be 
chosen by the parish committee in virtually the same man­
ner as that described in § 61 of Act No. 46. By the terms of 
La. Gen. Stat. Ann. (Dart, 1939) §§ 2675 and 2721, the com­
missioners receive from the state treasury three dollars for 
each day’s active service.



58

Provided that no person whose name is 
not authorized to be printed on the official 
ballot, as the nominee o f a political party 
or as an independent candidate, shall be 
considered a candidate fo r  any office unless 
he shall have filed with the Clerks of the 
District Court o f  the parish or parishes in 
which such election is to be held, or the Clerk 
o f the Civil District Court o f the Parish of 
Orleans i f  he be a resident o f the Parish of 
Orleans, at least ten (10) days before the 
general election, a statement containing the 
correct name under which he is to be voted 
for  and containing the further statement 
that he is willing and consents to be voted 
for  for that office, and provided further that 
no commissioners o f elections shah count a 
ballot as cast fo r  any person whose name is 
not printed on the ballot or who does not 
become a candidate in the foregoing manner.

U. S. GOVERNMENT PRINTING OFFICE: I9<>







No. 618

Jttfe Jk p rm e  *rf th  tto iM  states
October T erm, 1940

The U nited States of A merica, appellant

v.
Patrick B. Classic, J ohn A. Morris, B ernard W . 

Yeager, J r., W illiam  Schumacher and J. J. 
Fleddermann
/. ------------

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES 
FOR THE EASTERN DISTRICT OF LOUISIANA

STATEMENT AS TO JURISDICTION





In the District Court of the United States 
for the Eastern District of Louisiana

Grim. No. 20067

U nited States of A merica

v.
Patrick B. Classic, J ohn A. M orris, B ernard W .

Yeager, Jr., W illiam  Schumacher, and J. J.
Fleddermann

STATEMENT OF JURISDICTION

(Filed November 7, 1940)

In compliance with Rule 1 2  of the Supreme 
Court of the United States, as amended, the United 
States of America submits herewith the statement 
showing the basis o f the jurisdiction o f the Su­
preme Court to entertain an appeal in this case.

A. The statutory jurisdiction of the Supreme 
Court to review by direct appeal the judgment 
complained of is conferred by United States Code, 
Title 18, Section 682, otherwise known as the

Criminal Appeals A ct,”  and by United States 
Code, Title 28, Section 345.

B- The statutes of the United States, the con­
struction of which are involved herein, are U. S. C., 
Title 18, Sections 51 and 52 (Sections 19 and 20 of 
the Criminal Code).

280202— 40 (1)



2

Section 51. I f  two or more persons con­
spire to injure, oppress, threaten, or intimi­
date any citizen in the free exercise or en­
joyment of any right or privilege secured to 
him by the Constitution or laws of the 
United States, * * * they shall be fined
not more than $5,000 and imprisoned not 
more than ten years, and shall, moreover, 
be thereafter ineligible to any office or place 
of honor, profit, or trust created by the Con­
stitution or laws of the United States (E.
S. § 5508; Mar. 4, 1909, e. 321, § 19, 35 Stat. 
1092).

Section 52. Whoever, under color of any 
law, statute, ordinance, regulation, or cus­
tom, willfully subjects, or causes to be sub­
jected, any inhabitant of any State, Terri­
tory, or District to the deprivation of any 
rights, privileges, or immunities secured or 
protected by the Constitution and laws of 
the United States, or to different punish­
ments, pains, or penalties, on account of such 
inhabitant being an alien, or by reason of his 
color, or race, than are prescribed for the 
punishment o f citizens, shall be fined not 
more than $1,000, or imprisoned not more 
than one year, or both. (R . S. § 5510; Mar. 
4,1909, c. 321, § 20, 35, Stat. 1092.)

C. The opinion and judgment of the District 
Court sought to be reviewed were entered October 
9 and 14,1940, and the petition for appeal was filed 
November 7, 1940, and it is presented to the Dis­
trict Court herewith, to wit, on the 7th day of 
vember 1940.



3

The indictment in this case contains six counts.
A demurrer was filed as to all o f the counts. The 

District Court sustained the demurrer as to the 
first four counts but postponed hearing as to the 
last two counts. Subsequently on October 31, 1940 
the District Court overruled the demurrer as to 
counts five and six. The Government appeals only 
from the ruling o f the District Court sustaining 
the demurrer as to Counts 1  and 2 and dismissing 
and quashing those counts.

Count 1  is based upon that portion o f U. S. C., 
Title 18, Section 51, which is quoted supra. This 
count charged that the defendants named served 
as Commissioners of Election, under the laws of 
the State of Louisiana, in the Second Precinct o f 
the Eleventh W ard o f the City of New Orleans at 
a primary election held on September 10,1940, for 
the purpose o f nominating a candidate o f the 
Democratic Party for  Representative in Congress 
from the Second Congressional District o f Lou­
isiana. It was alleged that these defendants con­
spired to injure, oppress, threaten and intimidate 
citizens of the United States in the free exercise 
and enjoyment o f rights and privileges secured to 
them by the Constitution and laws o f the United 
States, i. e., ( 1 ) the right o f registered voters who 
cast their ballots at this primary election to vote 
and to have their votes counted as cast fo r  the can­
didate of their choice, and ( 2 ) the right o f certain 
candidates at this primary election to have all



4
votes cast for them counted as cast.1 The count 
charged as overt acts that the defendants changed 
numerous ballots which were cast for one candi­
date and marked and counted them as votes for 
another candidate, and that they falsely certified 
the number o f votes cast for  the respective can­
didates.

The second count is based upon U. S. C., Title 
18, Section 52, which is quoted supra. It charged 
that the same defendants, acting under color of a 
statute o f Louisiana, wilfully subjected registered 
voters at the same primary, which voters were in­
habitants o f the State o f Louisiana, to the depriva­
tion o f rights, privileges, and immunities secured 
and protected by the Constitution and laws of the 
United States, i. e., their right to cast their votes 
fo r  the candidate o f their choice and to have their 
votes counted as cast. The count further charged 
that this deprivation was effected by the failure 
and refusal o f the defendants to count votes as cast, 
by their alteration of ballots, and by their false 
certification o f the number o f votes cast for the 
respective candidates.

The District Court in sustaining the demurrer 
to Counts 1 and 2 construed Sections 51 and 52 as 
not embracing the offenses charged in those counts.

1 The Government in this case is not seeking' to sustain the 
application of Sections 51 and 52 to the rights of candidates 
at primary elections. Consequently, it is not challenging 
the ruling of the District Court insofar as it applies to t e 
second object of the conspiracy charged in the first conn 
and to the third and fourth counts.



5
In reliance upon the m ajority opinion o f this Court 
in Newberry v. United States, 256 U. S. 232, and 
the construction therein o f Section 4 o f Article I  
of the Constitution o f the United States, the Dis­
trict Court held that the right or privilege o f voting 
at primary elections for  the nomination of candi­
dates for the office o f member o f the House of Rep­
resentatives was not “ secured”  or “ secured and 
protected”  by the Constitution or laws o f the 
United States, and hence was not a right the dep­
rivation of which could be punished under Sec­
tions 51 and 52. The Court also held that the 
application to the facts charged o f Sections 51 and 
52, which were enacted before primary elections 
came into existence, would result, in the language 
of United States v. Gradwell, 243 U. S. 476, in 
“ stretching old statutes to new uses, to which they 
are not adapted and for which they were not 
intended.”

The questions presented in the instant case are, < 
we believe, of paramount public importance. The 
relationship between a primary election and the en- 
suing general election is so intimate that the out­
come of the former is often determinative of the | 
latter. This is particularly so in those sections 
of the country where nomination is tantamount to 
election and the election becomes merely perfunc- 
tory. Hence, a voter may be as effectually deprived 
of his right or privilege o f participating in the final 
selection of Senators and Representatives where 
acts such as those charged in the indictment were



6

committed at a prim ary as where they took place 
at the general election.

The court below did not deny these self-evident 
facts but relied instead upon what is conceived to 
be the opinion o f this Court in the Newberry case. 
But only a minority o f the Court concurred in the 
chief opinion, which held broadly that the Federal 
Corrupt Practices Act was invalid as applied to 
primary elections for the nomination of Senators, 
and even that opinion emphasized that the statute 
was enacted prior to the Seventeenth Amendment 
(256 U. S. at 254). Four Justices thought the Act 
constitutional and one thought it invalid because 
enacted prior to the Seventeenth Amendment, but 
reserved opinion as to the power of Congress under 
that Amendment.2

The court below also intimated that a statute 
enacted in 1870 could have no application to a 
prim ary held in 1940, probably because primary 
elections were unknown when Sections 51 and 52 
were enacted. But those sections punish, in broad 
terms, the deprivation o f rights and privileges 
secured by the Constitution and laws of the United 
States. Nothing in their language indicates an 
intention to leave unprotected the exercise of those 
rights and privileges through procedures subse­

2 Sections 51 and 52, of course, were also enacted prior 
the Seventeenth Amendment, but the question here is no 
the general validity of the statute, as in the Newberry cas®> 
but the validity of the present application of Sections» 
and 52.



7
quently developed. United States v. Gradwell, 
243 U. S. 476, is not necessarily opposed, for there 
the Court emphasized “ some strikingly unusual 
features of the W est V irginia law under which 
the primary was held”  (243 U. S. at 487) .3 So far 
as it amounts to a broad holding that a statute 
legislating in general terms is to be restricted to 
the specific instances envisioned by Congress at the 
time of its enactment, the Gradwell case is no 
longer followed by this Court. See Puerto Rico v. 
Shell Co., 302 U. S. 253, 257-259; United Stales v. 
Thind, 261 U. S. 204, 207-208; Ozawa v. United 
States, 260 U. S. 178,195-196. In  Hague v. C. I. O. 
307 U. S. 496, 512-514, 532, four members o f the 
Court agreed that free discussion o f the National 
Labor Relations Act was a privilege and immunity 
of citizens o f the United States and four members 
agreed that this purpose, together with others un­
known to Congress when it enacted the jurisdic­
tional provisions of the Civil Rights Act o f 1871, 
were privileges and immunities secured by the Con­

3 The West Vir ginia provisions permitted candidates to - 
be nominated by petition for the general election, irrespec­
tive of the outcome of the primary. In contrast, the Louisi­
ana election laws prescribe that “all political parties shall 
make all nominations of candidates for * * * Members 
of the House of Representatives in the Congress of the 
United States * * * by direct primary elections,” and 
prohibit the Secretary of State from placing on the ballot 
any candidate for any political party who was not so nomi­
nated. Laws of 1940, Act RTo. 46, Sec. 1.



8

/

stitution and laws o f the United States. Neither 
ruling would be possible under any broad applica­
tion o f the Gradwell case.

I f , as we submit, a primary election is such an 
integral part o f the elective process that free elec­
tion cannot be assured unless the rights of voters 
at the primaries are protected from  corruption, 
fraud or violence, it would seem that their rights 
are as much within the protection of Sections 51 
and 52 as are the rights o f voters at general elec­
tions. It is well settled that the right to vote for 
members of Congress at general elections and to 
have such vote counted as cast is a right secured 
to the voter by the Constitution within the mean­
ing o f Section 51. Ex parte Yarbrough, 110  TJ. S. 
652; United States v. Mosley, 238 U. S. 383.

D. The following decisions sustain the jurisdic­
tion of the Supreme Court under that provision of 
the Criminal Appeals Act allowing a direct appeal 
to the Supreme Court “ From  a decision or judg­
ment * * * sustaining a demurrer to any in­
dictment, or any count thereof, where such de­
cision or judgment is based upon the * * * 
construction of the statute upon which the indict­
ment is founded ’ ’ :

United States v. Patten, 226 U. S. 525, 
535; United States v. Birdsall, 233 U. S. 
223, 230; United States v. Kapp, 302 U. S. 
214, 217; United States v. Borden Go., 308 
U. S. 188,192-193.



9

It may also be suggested that tbe jurisdiction of 
the Supreme Court may be sustained on the ground 
that the judgment of the District Court is one sus­
taining a special plea in bar, when the defendants 
have not been put in jeopardy. See United States 
v. Celestine, 215 U. S. 278; United States v. Bar­
ber, 219 U. S. 72; United States v. 0 ppenheimer, 
242 IT. S. 85; United States v. Thompson, 251 IT. S. 
407; United States y. Goldman, 277 IT. S. 229.

Appended hereto is a copy o f the opinion of the 
District Court rendered on October 9, 1940.

Respectfully submitted.
(Signed) F rancis B iddle,

Solicitor General. 
(Signed) R ene V iosca,

United States A ttorney fo r  the Eastern  
District o f Louisiana. 

(Signed) R obert W einstein, 
Assistant United States Attorney.



E X H IB IT  E

United States District Court, Eastern 
District of Louisiana, New Orleans 
Division

(No. 20067 Criminal) 

U nited States of A mebica

v.
P atbick B. Classic, J ohn A. M orris, B ernard W. 

Y eager, J r., W illiam  Schumacher, J. J. Fled-
DERMANlN

OPINION

(Filed October 9th, 1940)

Caillouet, J . : There are six (6 ) counts in the 
Indictment returned by the Grand Jury, in the 
above-entitled and numbered case, against P atrick 
B. Classic, J ohn A. M orris, B ernard W. Yeagee, 
J r., W illiam  Schumacher, and J. J. Fleddee-
MANN.

They have filed a demurrer to said indictment, 
and insofar as objection is urged to counts 1, 2, 3, 
and 4, the Court sustains said demurrer on the 
ground that no provision o f Sections 19 and 20 of 
the Criminal Code (Secs. 51 and 52, Title 18, 
U. S. C. A .) refers or has application to the state 
o f facts detailed in said four counts.

(10)



11
The provisions of Section 51, depended upon by 

the Government as justifying the conspiracy charge 
covered by count 1 , read :

I f  two or more persons conspire to injure, 
oppress, threaten, or intimidate any citizen 
in the free exercise or enjoyment o f any 
right or privilege secured to him by the Con­
stitution or laws of the United States, or 
because of his having so exercised the 
same, * * *.

The count charges that there was a conspiracy—
* * * to injure, oppress, threaten, and
intimidate citizens in the free exercise and 
enjoyment of rights and privileges secured 
to them by the Constitution and laws of the 
United States.

and that, at a primary election held on September 
10th, 1940, in accordance with the provisions of 
Act No. 46 of the Regular Session o f the Legisla­
ture of the State of Louisiana for the year 1940, for 
the purpose of selecting and nominating a candi­
date for the Democratic Party to run in the elec­
tion for the office of Congressman in the Congress 
of the United States of America, to be held in the 
Second Congressional District o f the State of Lou­
isiana, on November 5th, 1940, in accordance with 
the provisions o f the Constitution and laws o f the 
United States and o f the State of Louisiana, the 
defendants, then and there serving as Commis­
sioners of Election, in accordance with said Act 46 
of 1940, did, as part and purpose of said conspiracy 
to injure, oppress, threaten, and intimidate”  citi­

zens and registered voters who cast their ballots in 
said primary election, at the 2nd precinct o f the 
Uth ward of the City of New Orleans, in said Sec­



12

ond Congressional District, as well as two of the 
three candidates for the nomination as Demo­
cratic candidate for  the office o f Congressman 
from  said District, to be voted on at the General 
Election o f  November 5, 1940, change and alter 
ballots cast fo r  said two candidates to read in favor 
o f the third and successful candidate, and did so 
mark and report the same, thereby depriving the 
voters, who had so cast their ballots in favor of 
either of his two opponents, o f the free exercise and 
enjoyment o f their rights and privileges secured to 
them by the Constitution and laws of the United 
States, in this wise, to w it: “ their rights and priv­
ileges to vote and to have their votes counted as 
cast fo r  the candidate of their choice in said elec­
tion ” ; and, furthermore, thereby depriving each 
o f the first mentioned two candidates of their own 
rights and privileges secured to them by such Con­
stitution and laws, i. e., “ by preventing each of 
them from  being legally and properly nominated as 
a candidate for  said office”  and by not having 
counted for them, as cast, all o f the votes actually 
cast for each in said primary election. The count 
specifically alleging that “ in the Second Congres­
sional District o f Louisiana nomination as the 
candidate o f the Democratic Party is and has al­
ways been equivalent and tantamount to election, 
and that, without exception, since the adoption of 
the first prim ary election law by the State of Lou­
isiana in the year 1900, the Democratic nominee for 
the office o f Congressman from  the Second Con­
gressional District o f Louisiana has been elected.

Section 52 provides, in part, as follows:
W hoever, under color o f any law, statute,
ordinance, regulation, or custom, wiilM .



|13

subjects, or causes to be subjected, any in­
habitant of any State, Territory, or District 
to the deprivation o f any rights, privileges, 
or immunities secured or protected by the 
Constitution and laws o f the United States. 
* * * shall be fined, etc.

The foregoing is depended upon by the Govern­
ment as justifying the charges covered by counts 
2, 3, and 4 to the effect, respectively, that the de­
fendants did “ unlawfully, wilfully, knowingly, and 
feloniously subject and cause to be subjected”  not 
only registered voters o f the 2nd precinct o f the 
eleventh ward of the City o f New Orleans, in the 
Second Congressional District o f the State of 
Louisiana, but the two unsuccessful candidates, at 
said Democratic primary election o f September 
10, 1940, for the Democratic nomination as Can­
didate for the office o f  Congressman at the general 
election to be held on November 5, 1940, “ to the 
deprivation of rights, privileges, and immunities 
secured and protected by the Constitution and 
laws of the United States” ; such voters having been 
deprived, it is alleged, o f “ their right to east their 
votes for the candidates of their choice, and to have 
their votes counted for such candidate as cast in the 
Democratic primary election o f September 1 0 , 
1940.” , and each o f said two unsuccessful candi­
dates, having been deprived of his “ rights, privi­
leges, and immunities—

(1) to offer himself as a candidate for the 
office of Congressman in the Congress of the 
United States for the Second Congressional 
District of Louisiana;

(2 ) to be legally and properly nominated 
as a candidate for the office o f Congressman



u
in the Congress of the United States from 
the Second Congressional District of Louisi­
ana; and

(3 ) to have counted fo r  him all votes 
legally cast fo r  him for said nomination for 
said office” ;

As was held in Newberry et al. vs. United States, 
256 U. S. 232, 41 Sup. Ct. 469 (1921), and in prior 
cases cited by the m ajority opinion, the source of 
Congressional power over elections for United 
States Senators and Representatives is found on 
Section 4, Article 1, o f the Federal Constitution, 
reading as follows:

The times, places and manner of holding 
elections for Senators and Representatives 
shall be prescribed in each state by the Legis­
lature thereof; but the Congress may at any 
time by law make or alter such regulations, 
except as to the places of choosing senators.

But the “ elections”  therein referred to are “ gen­
eral”  elections and not “ prim ary”  elections, which 
are not final and o f themselves do not “ elect” any­
one to serve either in the Senate or House of Rep­
resentatives; no power to control party primary 
elections, such as the Democratic primary election 
o f September 16th, 1940, was ever intended at the 
time that the Constitution was adopted; “ primary 
elections for  the nominating o f candidates for the 
offices o f either Senator or Member of the House 
of Representatives were not even within the orbit 
o f the Convention’s deliberations on the subject of 
representation in the National Congress, as ‘ Prl' 
maries”  were then unknown; and, as Justice 
McReynolds pertinently observed in the courts



1 5

majority opinion, the history of that time indicates 
“ beyond a reasonable doubt”  that, if  the makers 
of the Constitution had contended for a construc­
tion of Section 4 of Article 1 that included and 
affected a State’s legally prescribed medium for the 
nomination of party candidates seeking to be 
“ elected”  to either the Senate or the House of Rep­
resentatives, this would not have been ratified by 
the State Conventions.

Under the Newberry Case, it must here be said, 
as was then by the organ o f the Court, v iz :

W e can not conclude that authority to 
control party primaries or conventions for 
designating candidates was bestowed on 
Congress by the grant of power to regulate 
the manner of holding elections.

The “ free exercise or enjoym ent”  o f the right 
or privilege of participating in the primary election 
of September 10,1940, either as voter, or candidate 
for the Democratic nomination for the office of 
Congressman, to be voted on at the general elec­
tion on November 5, 1940, was not “ secured,”  nor 
“ secured and protected,”  to voter or candidate “ by 
the Constitution or laws o f  the United States,”  
although the four counts here in question so read.

The provisions o f Sections 51 and 52, so depended 
upon by the Grovernment to support counts 1 , 2 , 
3, and 4, respectively, o f the indictment levelled 
against the five defendants, could only be made ap­
plicable ( if  these provisions were otherwise sus­
ceptible of legal application) to the facts charged 
as having only come into being in connection with 
a party primary election held on September 10,1940,

by stretching old statutes to new uses, to which



16
they are not adapted and for which they were not 
intended,”  to use the expression of the Supreme 
Court, in the ease of United States vs. Gradivell, 
etc., 243 U. S. 476, 37 Sup. Ct. 407 (1917).

Clearly, these statutory provisions of 1870 have 
no application here.

Under both of the foregoing constructions—that 
o f Section 4 o f Article 1 o f the United States Con­
stitution, as well as that o f Sections 19 and 20 of 
the Criminal Code (Secs. 51 and 52, Title 18 U. S. 
C. A .)— the demurrer filed must be, and is, SUS­
TA IN E D  insofar as it relates to the first four of 
the six counts of the indictment, and the said four 
counts are hereby D ISM ISSE D .

(Signed) A. J. Caillouet,
Judge.

New  Orleans, L ouisiana,
October 9th, 1940.

O. S. GOVERNMENT PRINTING OFFICE'







i r ’ X L

IN THE MAR 22

Supreme Court of the United States
October Term, 1940.

No. 618

THE UNITED STATES OF AMERICA,

versus
Appellant,

PATRICK B. CLASSIC, JOHN A. MORRIS, BERNARD
W. YEAGER, JR., WILLIAM SCHUMACHER, and 
J. J. FLEDDERMANN,

Appellees.

Appeal from the District Court of the United States for 
the Eastern District of Louisiana.

BRIEF OF DEFENDANTS AND APPELLEES.

WARREN O. COLEMAN,
1329 Whitney Building,

New Orleans, Louisiana, 
CHARLES W. KEHL, 
FERNANDO J. CUQUET, JR., 

Carondelet Building,
New Orleans, Louisiana, 

Attorneys for Defendants 
and Appellees.





INDEX.

Opinion Below .................................................................  I
Statutes Involved ...........................................................  2
Questions Presented .......................................................  2
Statement ........................................................................  3
Summary of Argument .................................................. 4
Argument ......................................................................... 6

Point I—When Will Court Pass on Constitutionality
of Act of Congress? ............................................  6

Point II—Count Charging Two Conspiracies Not 
Severable, If One Conspiracy Invalid Whole 
Count Falls ...........................................................  7

Point III—Count Two Invalid As It Does Not Ade­
quately Allege That Defendants Acted Under 
Color of Law—Act 46 of 1940 Discussed........ 13

Review of Party Primary Election Laws of Louisiana 15
State Regulation of Political Party Does Not Con­

stitute It Creature of State ............................... 22
Point IV—Argument Based on Jurisprudence of This 

Court As To Whether Primary Is An Election 
Within Meaning of Sec. 4 of Art. I of the Con­
stitution .................................................................  25

Jurisprudence of State Courts Distinguishing Between
Primary and E lection..........................................  29

Meaning of Word Election As Used in Art. I, Sec. 4
of The Constitution ............................................  30

General Reply to Appellants’ Contentions Made in
Statement of Jurisdiction B r ie f .........................  48

Conclusion ....................................................................... 52

Appendix ..........................................................................  53

PAGE



I I

CITATIONS.
PAGE

Babbitt v. State, 174 Pac. (Wyoming) 188 ............. 56
Bryant v. U. S., 257 F. 378 .......................................... 11
Commonwealth v. Atwood, 11 Mass. 93 ..................... 12
Commonwealth v. Helm, 9 Ky. L. Rep. 532 (1887) . . .  29
Commonwealth v. Wells, 110 Pa. St. 463, 468, Act

310 (1885) ...........................................................29,55
Creel v. U. S., 21 F. (2d) 690 ........................................ 11
Cunningham v. McDernett, 277 S. W. 218 (Tex. 1925) 23
Dodge v. U. S., 258 Fed. 300, 169 CCA 316, 7 ALR 

1510 [certiorari den. 250 U. S. 660 mem. 40 S.
Ct. 10 mem., 63 L. ed. 1194 mem.] ................  12

Dooley v. Jackson, 104 Mo. App. 1, 78 S. W. 330
(1904) .................................................................... 29,53

Ex p. Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. ed. 849 12
Ex Parte Yarbrough, 110 U. S. 652 ..........................  9,25
Faxwell v. Beek, 177 Md. 1, 82 Atl. 657 (1912) .......  24
Frohwerk v. U. S., 249 U. S. 204 .................................. H
Fulford v. State, 50 Ga. 591 .......................................  12
George v. State, 18 Ga. App. 753 .................................  56
Gray v. Seitz, 162 Ind. 1, 69 N. E. 456 (1904) . .29, 36, 39,56 
Greenough v. Lucey, 28 R. I. 230, 66 Atl. 300 (1907) 24
Grovey v. Townsend, 295 U. S. 45 ........................ 18, 26,51
Hager v. Robinson, 154 Ky. 489 ...................................  56
Hamilton v. Davis, 217 S. W. 431 (Tex. 1920) ......... 24
Hammer v. Dagenhart, 247 U. S. 251 ........................
Hawke v. Smith, No. 1, 253 U. S. 221 ...................40,41,44
Hester v. Brunland, 80 Ark. 95 S. W. 992 (1906) ... 29
Hill v. State, 41 Tex. 253 ........................................... 12
Hodge v. Bryan, 149 Ky. 110 .....................................  ^
In re: Debs, 158 U. S. 564, 591 ...................................  42
Jefferson v. State, 8 Ala. App. 364, 62 So. 315 .......
Jones v. Fisher, 156 Iowa 512, 137 N. W. 940 (1912) 2
Kay v. Schneider, 110 Tex. 369 ........................
Kearns v. Hamlett, 188 Pa. 116 Atl. 273 (1892) .......



I l l

CITATIONS— (Continued)
PAGE

Kelsow v. Cook, 184 Ind. 173 ......................................  56
Ledgerwood v. Pitts, 122 Tenn. 570, 587, 125 S. W.

1036 (1910) .....................................................29,36,54
Len v. Montgomery, 31 N. D. 1 ..................................... 56
Lett v. Dennis, 129 So. 33 (Ala. Sup. 1930) ...............  23
Lilliard v. Mitchell, 37 S. W. 702 (Tenn. Ch. App.

1896) ....................................................................... 29
Littell v. State, 133 Ind. 577, 33 N. E. 8 1 7 ...................  12
Lowe v. Bd. of Election Canvassers, 154 Mich. 329,

117 N. W. 730 (1908) ..........................................  29
Magon v. U. S., 260 F. 811 ............................................  11
Martin v. Schulte, 182 N. E. 703 (Ind. 1932) .............. 29
McKane v. Adams, 123 N. Y. 609, 25 N. E. 1057 (1890) 23
Montgomery v. Chelf, 118 Kentucky 766 ............ 36.39,56
Naftzger v. U. S., 200 Fed. 494 ....................................  12
Newberry v. U. S., 256 U. S. 232 ..................... 26,48,49,50
Nixon v. Condon, 286 U. S. 73 .....................................26,31
Nixon v. Herndon, 273 U. S. 536 .................................26,30
People v. Board of Election Comm., 221 Del. 9, 77

S. E. 311 (1906) ................................................  23
People v. Brady, 302 111. 576, 135 N. E. 87 (1922) . . .  24
People v. Cavanaugh, 112 Cal. 674, 676, 677, 44 P.

1057 (1896) .......................................................... 29,56
People v. Myers, 20 Cal. 76 ..........................................  12
Riter v. Douglass, 32 Nev. 400, 433 ............................... 56 23
Sawyer v. Frankson, 134 Minn. 258, 159 N. W. (1916) 29
Socialist Party v. Uhl, 155 Cal. 776, 103 Pac. 181

(1909) 23
State ex rel. McCue v. Blaisdeel, 18 N. D. 55, 118

N. W. 141 (1908) ................................................ 29
State ex rel. Von Stade v. Taylor, 220 Missouri 619 . .36, 53 
State ex rel. Zent v. Nichols, 50 Wash. 508, 97 Pac.

728 (1908) ........................................................... 29,53
State v. Duncan, 40 Mont. 531; 107 Pac. 5 1 0 ...............  12



IV

PAGE

CITATIONS— (Continued)

State v. Erickson, 119 Minn. 152, 156, 137 N. W.
385 (1912) ......................................................29,36,

State v. Freeman, 15 Vt. 722 ........................................
State v. Flynn, 76 N. J. L. 473, 72 Atl. 296 .............
State v. Johnson, 255 Mo. 281, 164 S. W. 209 .........
State v. Johnson, 87 Minn. 221, 91 N. W. 604 (1902) . .29,
State v. Nichols, 50 Washington 508 ..........................
State v. Simmons, 117 Ark. 159, 174 S. W. 238

(1915) .......................................................... 30,
State v. Taylor, 220 Mo. 618, 119 S. W. 373 (1909)
State v. Wilson, 91 Wash. 136, 157 Pac. 474 ...........
State v. Woodruff, 68 N. J. L. 89, 56 Atl. 204 (1902) . .29,
U. S. v. Bathgate, 246 U. S. 218 ................................  9,
U. S. v. Blair, 250 U. S. 273 .................................... 6,
U. S. v. Brown, 3 McLean (U. S.) 233 ....................
U. S. v. Davis, 6 Fed. 682 .............................................
U. S. v. Gradwell, 243 U. S. 476 ..........9, 26, 32, 35, 38, 39,
U. S. v. Mosley, 238 U. S. 383 .....................................  9,
U. S. v. O’Toole, 236 F. 993 ...........................................26,
U. S. v. Patty, (D. C.) 2 F. 664 ..................................
Waples v. Marrast, 108 Tex. 511, 184 S. W. 180,

L. R. A. 1917 A. 253 (1916) ..............................
Weinstein v. U. S., 11 F. (2d) 505 ..............................
Wilson v. Dean, 177 Ky. 97 .........................................

53
12
12
12
39

12
55 
52
38 
12 
12 
52 
25
39 
11

29
11
56

MISCELLANEOUS.

Cooley on Constitutional Law, Bruce’s Fourth Edi­
tion, Page 192, (1931) Ch. XV ........................

31 C. J., Sec. 413 ..........................................................
31 C. J. 774, Sec. 334 ...................................................
12 C. J., Sec. 432 ..........................................................
Hamilton’s The Federalist LX .....................................



V
MISCELLANEOUS— (Continued)

James Madison in Virginia Convention, Farrand’s
Records, Vol. 3, pp. 311, 319 ............................... 35

Joyce, “On Indictments” , 2nd Edition (1924), Sec. 332 12
Luther Martin’s “Genuine Information” in Farrand’s 

Records of Federal Convention, Vol. 3, pp. 194,
195 ........................................................................... 35

Merriam American Political Ideas (1920) ...............  23
Ray, An Introduction to Political Parties & Practical

Politics (1913) ....................................................  23
Roger Sherman in House of Representatives, Far­

rand’s Records, Vol. 3, p. 359 ............................. 35
Rufus King in Massachusetts Convention, Farrand’s

Records, Vol. 3, p. 267 ......................................  35
Storey on the Constitution, Sections 815-828 ...............46,47
William R. Davie in North Carolina Convention,

Farrand’s Records, Vol. 3, pp. 344, 345 .......... 35

STATUTES, ETC.

Title 18, U. S. C. A. 51—R. S. Sec. 5508; Mar. 4, 1909,
c. 321, Sec. 19, 35 Stat. 1092 ............................. 2

’ Title 18, U. S. C. A. 52—R. S. Sec. 5510; Mar. 4, 1909,
c. 321, Sec. 20, 35 Stat. 1092 ............................... 2

Sec. 4, Art. 8, Constitution of State of Louisiana . . . .  15
Sec. 14 of Act 46 of the Legislature of Louisiana of

1940 ......................................................................... 17
Act 130 of 1916 ...............................................................  22
17th Amendment to U. S. Constitution .....................  50
Art. 1, Sec. 4 of U. S. Constitution ............................. 30
Art. 8, Sec. 9, et seq.........................................................  22
15th Amendment to U. S. Constitution .......................  31

PAGE





IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1940.

No. 618.

THE UNITED STATES OF AMERICA,
Appellant,

versus

PATRICK B. CLASSIC, JOHN A. MORRIS, BERNARD
W. YEAGER, JR., WILLIAM SCHUMACHER, and 
J. J. FLEDDERMANN,

Appellees.

Appeal from the District Court of the United States for 
the Eastern District of Louisiana.

BRIEF OF DEFENDANTS AND APPELLEES.

OPINION BELOW.

The opinion of the United States District Court for the 
Eastern District of Louisiana (R. 18) is reported in 35 
Fed. Supp. 66.



2

STATUTES INVOLVED.

Section 51. “If two or more persons conspire to 
injure, oppress, threaten, or intimidate any citizen 
in the free exercise or enjoyment of any right or 
privilege secured to him by the Constitution or laws 
of the United States, * * * they shall be fined, etc. 
(R. S. Sec. 5508; Mar. 4, 1909, c. 321, Sec. 19, 35 
Stat. 1092.)”

Section 52. “Whoever, under color of any law, 
statute, ordinance, regulation, or custom, willfully 
subjects, or causes to be subjected, any inhabitant, 
of any State, Territory, or District to the deprivation 
of any rights, privileges, or immunities secured or 
protected by the Constitution and laws of the United 
States, or to different punishments, pains or penalties, 
on account of such inhabitant being an alien, or by 
reason of his color, or race, than are prescribed for 
the punishment of citizens, shall be fined” , etc. (R. S. 
Sec. 5510; Mar. 4, 1909, c. 321 Sec. 20, 35 Stat. 1092.)

QUESTIONS PRESENTED.

Point 1. Will the Court pass on the constitutional valid­
ity of an act of Congress where that is not necessary to 
a decision of the case?

Point 2. Where the crime charged consists of several 
conspiracies charged in one count, will that count be up­
held where the government announces that it is not seek­
ing to sustain part of the count?

Point 3. Since defendants were acting as officials of a 
political party, and were not state officers, could they



3

have violated section 52, which required that they act 
under color of a law, etc.?

Point 4. Does the indictment charge a federal offense, 
under Sections 51 and 52, when it alleges the deprivation 
of a right, privilege or immunity secured or protected 
by the Constitution or laws of the United States relating 
to a party nominating primary, and not a general election?

STATEMENT.

This is an appeal by the United States from a judg­
ment sustaining a demurrer to a bill of indictment charg­
ing the violation of Sections 51 and 52, Title 18, U. S. C. A. 
(Criminal Code Sections 19 and 20).

Only Counts 1 and 2 are before the court for decision. 
The appellant has not appealed from the judgment dis­
missing Counts 3 and 4. Counts 5 and 6 have to do with 
the mail fraud statute, and are not before the court as 
the demurrer was overruled as to those two counts.

It is alleged that the defendants, while acting as com­
missioners in a primary, fraudulently counted, altered and 
returned votes in connection with a party nomination of 
a candidate for the United States House of Representa­
tives, thereby depriving not only the voters, but also the 
candidates of their rights and privileges under the Con­
stitution and laws of the United States.



4

Point 1. The Supreme Court will not rule upon the 
constitutionality of an act of Congress, unless such a 
ruling is necessary for a decision of the case.

Point 2. Appellant has no right to change the nature 
of the crime charged by an attempt to omit part of a 
count of an indictment found by a Grand Jury.

Two conspiracies are charged in Count one of the indict­
ment. That count alleges that the defendants did deprive 
citizens and candidates, of certain rights and privileges 
involving the elective franchise, to-wit: (1) The citizens’
rights to cast their votes for the candidate of their choice, 
and to have their votes counted as cast; (2) The rights of 
the unsuccessful candidates, in and to such votes that were 
cast for them by the voters.

While this court has held that Sec. 51, Title 18, U. S. C. 
is applicable to conspiracies against the elective franchise 
insofar as general elections are concerned, those decisions 
fall far short of making the section applicable to the con­
duct of a state nominating primary, and do not advance 
us far toward the claimed conclusion that illegal voting 
for one candidate at such a primary so violates a right 
secured to the other candidate by the United States Con­
stitution and laws as to constitute an offense within the 
meaning and purpose of the section.

Where two conspiracies are charged in one count this 
constitutes but one crime. The appellant concedes that it is 
not attempting to sustain the validity of one of the con-

S U M M A R Y  OF ARGUMENT.



5

spiracies so charged in the count. Therefore, the count of 
the indictment not being severable without garbling 
the charge found by the Grand Jury, the demurrer was 
properly sustained as to that count without regard to the 
constitutional question of whether the federal courts have 
jurisdiction in cases involving primary elections.

Point 3. The second count charges that the defendants 
in acting as election officials (commissioners) acted under 
color of state law, to-wit: Act 46 of 1940; but that act
provides against party officials being considered officers 
or employeees of the state. Therefore, Sec. 52 has no 
application to them, as they are merely party officers 
without regard to the Constitutional question of whether 
the federal courts have jurisdiction in cases involving 
primary elections.

The fact that a political party, and its manner of select­
ing its nominee through a nominating primary, is regulated 
by state law does not mean that they are creatures of the 
state.

Point 4. There is no provision of the Constitution or 
laws of the United States by which such right or privilege 
of a member of such political party is secured to him.

A nominating primary is in no sense an election within 
the intendment of Sec. 4 of Art. I of the Constitution of the 
United States.



6

ARGUMENT.

POINT 1.

When Will Court Pass On Constitutionality Of 
Act Of Congress?

This case is presented by appellant in its brief as though 
the sole question at issue is the application vel non of 
Sections 51 and 52, Title 18, U. S. C. (Sections 19 and 
20 of the Criminal Code) to a party nominating primary.

There are substantial questions, arising under the de­
murrer to the indictment, which should be determined 
before the serious and far-reaching constitutional question 
involving the jurisdiction of the federal courts over party 
nominating primaries is considered.

We understand that it is a well-recognized rule that this 
court will not pass upon the constitutional validity of an 
act of Congress unless such a determination is essential to 
a proper decision of the case.1

We do contend that the application which the appellant 
seeks to make of Sections 51 and 52 in this case is un­
constitutional. The Federal Government has no power, 
either express or implied, to regulate the affairs of political

1 Cooley on Constitutional Law, Bruce’s Fourth Edition, Page 192, 
(1931) Ch. XV.See United States v. Blair, 250 U. S. 273, where the Court said (pp. 
278-279):“Considerations of propriety, as well as long-established prac­tice, demand that we refrain from passing upon the constitutional­ity of an Act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised 

by a party whose interests entitle him to raise it.”



7

parties, or their manner of selecting, or nominating the 
persons they propose to support at an ensuing election. 
However, this is an alternative argument that need not 
be decided unless it is found that our contentions, that 
the two counts appealed herein do not charge an offense 
cognizable under federal laws, are without merit.

POINT 2.

Count Charging Two Conspiracies Not Severable, If One 
Conspiracy Invalid Whole Count Falls.

The government has not appealed from the judgment 
sustaining the demurrer to Counts 3 and 4 of the indict­
ment. Those counts charge that the defendants did sub­
ject, and cause to be subjected, the two unsuccessful candi­
dates for the Democratic primary, who were candidates 
for nomination for Congress, to the deprivation of their 
rights and privileges and immunities protected by the 
Constitution and laws of the United States, such voters 
having been deprived of the right to vote for the candi­
dates of their choice, and each of the two unsuccessful 
candidates having been deprived of his rights, privileges 
and immunities to offer himself as a candidate to be legally 
and properly nominated as a candidate and have counted 
for him all votes legally cast for him, for said nomination 
for said office.

Undoubtedly appellant failed to appeal on those two 
counts because it could not reasonably contend that the 
Constitution and laws of the United States protected the



8

candidates to the rights to any votes cast. On the contrary, 
such civil rights cases as the Mosley' and Yarbrough cases 
have never gone further than to hold that it is the in­
dividual voter whose right to vote and have his vote 
counted as cast that is protected.

Appellant’s appeal, however, covers Count 1. That 
count, like Counts 3 and 4, charges not only a conspiracy 
to injure citizens and voters in the free exercise and 
enjoyment of the right and privilege secured by the Con­
stitution and laws of the United States to vote and have 
their votes counted, but it also charges,

(R-2) “That it was also a part of said conspiracy 
and the purpose of said conspiracy to injure, oppress, 
threaten and intimidate Paul H. Maloney and Jacob 
Young, citizens and candidates for the office of Con­
gressman in the Congress of the United States from 
the Second Congressional District of Louisiana in the 
free exercise and enjoyment of the rights and privi­
leges secured to them by the Constitution and laws 
of the United States, to-wit: their right and privilege 
as citizens to run for the office of Congressman in 
the Congress of the United States from the Second 
Congressional District of Louisiana, by preventing 
each of them from being legally and properly nomi­
nated as a candidate for said office; and, to-wit, their 
right and privilege to have counted for them as cast, 
all of the votes cast for them in said Democratic 
primary election;

“That it was further a part of said conspiracy and 
the purpose of said conspiracy to deprive Paul H. 
Maloney and Jacob Young of the votes cast for them 
in said second precinct of the eleventh ward by not 
counting some of the votes cast for them and by eras-



9

ing the marks on the ballots placed by the voters in 
said precinct behind the names of Paul H. Maloney 
and Jacob Young indicating votes for Paul H. Ma­
loney and Jacob Young, and placing in lieu thereof 
marks behind the name of T. Hale Boggs indicating 
votes for T. Hale Boggs.”

Appellant, realizing at this late date the limitations 
placed upon the scope of Section 51,2 now disclaims in the 
brief filed in this court any intention of seeking to sustain 
the application of Sections 51 and 52 to the rights of the 
unsuccessful candidates in and to the votes alleged to be 
cast for them at the primary elections. Appellant also 
disclaims any intention of challenging the ruling of the 
District Court insofar as it applies to that part of the 
conspiracy charged in the first count, as well as to the 
third and fourth counts, on which latter counts no appeal 
has been taken.

We know of no authority that permits the government 
to divide a count of an indictment brought by a Grand 
Jury by trying to differentiate the valid from the invalid 
part, as the government attempts to do in this case. The 
demurrer was aimed at the count in the indictment as a 
whole. The government has seen fit to submit to the 
Grand Jury an indictment, which charged a conspiracy 
to deprive not only the voters of their rights to have their 
votes counted, but also the candidates of their rights to 
the votes cast under the Constitution and laws of the 
United States. The government now concedes that it is 
not attempting to sustain that part of the count having 
to do with the rights and privileges of the candidates.

ĉ u- S. v. Gradwell, 243 U. S. 476; Ex parte Yarbrough, 110 U. S. b&2; U. S. v. Mosley, 238 U. S. 383; U. S. v. Bathgate, 246 U. S. 218.



10

We confess that we have never heard of a demurrer 
filed in a criminal case having been partially sustained 
and partially overruled as to a count in an indictment. 
Either the count is valid as a whole, or invalid as a whole.

It cannot be assumed that the Grand Jury would have 
returned an indictment against the defendants which 
charged only a conspiracy to deprive the voters, and not 
the candidates, because that charges a crime different 
from the one the Grand Jury found, and they may not 
have voted it with the part omitted which the appellant 
now seeks to eliminate. The government cannot sever 
a count and contend that the count being partially valid 
that the other well-charged part of the count can be disre­
garded and the demurrer overruled. It would seem to be 
but plain logic that the court must either sustain a de­
murrer or overrule it. It cannot alter the charge found by 
the Grand Jury. The demurrer should be sustained if any 
well-pleaded substantial charge contained in the indict 
ment is unconstitutional or otherwise invalid.

The Sixth Amendment of the Constitution requires all 
crimes to be by indictment found by a Grand Jury, and 
an indictment once found cannot be altered or changed 
to suit the exigencies of the prosecution. If such loose 
pleading were sanctioned by this court, a defendant could 
be materially prejudiced in his defense in being required 
to meet matters contained in an indictment which clearly 
have no place in it, and the government could draw du­
plicitous counts in indictments to the prejudice of de­
fendants in all cases without fear of having a demurrer 
sustained on that well-recognized ground. A defendant



11

should never be required to answer to an indictment con­
taining an unconstitutional or otherwise invalid charge, 
even if the invalidity strikes at only part of the charge. 
If he were found guilty on the count a motion in arrest 
of judgment would have to be sustained because the court 
would be unable to ascertain whether the jury based their 
verdict upon the valid or the invalid charge in the count. 
Therefore, if such a dangerous possibility exists, the count 
in its entirety should be dismissed on demurrer.

The charge in this first count is a conspiracy not only 
to deprive the voters of their rights, but also to deprive 
one candidate of his rights in favor of another candidate, 
and thus deprive an unsuccessful candidate of a right or 
privilege under the Constitution and laws of the United 
States.

A conspiracy to commit two or more crimes, being itself 
but a single crime, may be charged in one count.3

“Words adequately charging a distinct offense can­
not be rejected as surplusage.” If they could, the vice 
of duplicity could be practiced with impunity.4

“The rule is stated in 31 C. J. 774, Sec. 334, as 
follows . . . ‘Where separate offenses are sufficient­
ly charged, none of them can be rejected as surplus­
age in order to support the charge as of another.’ ”

“The principle of law which permits unnecessary 
and harmless allegations in an indictment to be dis­
regarded as surplusage, does not authorize the court 
to garble the indictment, regardless of its general

3Frohwerk v. U. S. 249, U. S. 204; Magon v. U. S., 260 F. 811; Bryant v. U. S., 257 F. 378; Weinstein v. U. S., 11 F. (2d) 505.4 Creel v. U. S., 21 F. (2d) 690; U. S. v. Patty (D. C.) 2 F. 664.



12

tenor and scope, so as to entirely change the mean­
ing.”5

“And while immaterial averment may be rejected, 
there cannot be a rejection as surplusage of an aver­
ment which is descriptive of the identity of that 
which is legally essential to the claim or charge and 
this includes those allegations which operate by way 
of description or limitation on that which is ma­
terial.” 6

“That which may have been the ground of convic­
tion cannot be rejected as surplusage.”7

“At common law an indictment, being the finding 
of a grand jury upon oath and depending upon this 
fact, among others, for its validity, cannot be amended 
by the court or the prosecuting officer in any matter 
of substance without the concurrence of the grand 
jury which presented it.”8

The decisions which have held that Section 51 applies 
to conspiracies to deprive voters of their right to vote, 
and have their vote counted as cast, are not analogous to 
the charge that the commissioner defrauded one candidate 
in favor of his rights under federal laws. The decisions 
have never gone so far as to hold that fraudulent count-

5 Joyce, “On Indictments”, 2nd Edition (1924), Sec. 332. Littell v. 
State, 133 Ind. 577, 33 N. E. 817.6 Joyce, “On Indictments”, 2nd Edition (1924), Sec. 332. Fulford v. State, 50 Ga. 591; Hill v. State, 41 Tex. 253; State v. Freeman, 15 Vt. 722. See also, U. S. v. Brown, 3 McLean (U. S.) 233, People v. Myers, 20 Cal. 76; Commonwealth v. Atwood, 11 Mass. 93; Jefferson v. State, 8 Ala. App. 364, 62 So. 315; State v. Flynn, 76 N. J. L. 473, 72 Atl 296
7 Joyce, “On Indictments”, 2nd Edition (1924), Sec. 332. Comm. v. Atwood, 11 Mass. 93; State v. Johnson, 255 Mo. 281, 164 S. W. 209; State v. Wilson, 91 Wash. 136, 157 Pac. 474; Naftzger v. U. S., 200 Fed. 494; State v. Duncan, 40 Mont. 531; 107 Pac. 510.s 31 C. J., Sec. 413. Ex p. Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. ed. 849; Dodge v. U. S., 258 Fed. 300, 169 CCA 316, 7 ALR 1510, [certio­rari den. 250 U. S. 660 mem., 40 S. Ct. 10 mem., 63 L. ed. 1194 mem.]; 

U. S. v. Davis, 6 Fed. 682.



13

ing of votes in favor of one candidate at such a primary 
violates any right or privilege as to the other, which are 
secured by the United States Constitution and laws, as to 
constitute an offense within the meaning and purposes 
of the Section.

That count should be construed as a whole and not 
piece-meal. So we submit that the judge was correct in 
sustaining the demurrer, not only for the reason that 
Section 51 does not apply to the affairs of a political party 
in conducting a party primary, but also because, as the 
government concedes, Section 51 could not apply to the 
purely private political rights of a candidate to a vote 
cast by a citizen. The right to vote and have the vote 
counted as cast belongs to the citizen according to the 
Mosley case, and not to the candidate.

POINT 3.

Count Two Invalid as it Does Not Adequately Allege That 
Defendants Acted Under Color of Law—Act 46 of 
1940 Discussed.

Under Section 52, it must be adequately alleged that 
the defendants, in depriving the voters of their rights to 
vote, and have their vote counted as cast, acted under 
color of a law.

That count alleges that the defendants acted under color 
of a State law, to-wit: Act 46 of 1940. That Act pro­
vides for the regulation of primaries held by political



14

parties. There is nothing contained in Act 46 of 1940 
which would justify the allegation that the defendants, 
acting as election commissioners on behalf of their politi­
cal party in selecting its nominee at its primary, were 
acting under color of a law.

The principal governing body of the political party is the 
State Central Committee. Section 10 of the Act makes 
it clear that the Legislature did not intend that this Act 
should be so construed as to make the political party 
merely a creature of the State. It is also clear that the 
act was never intended to constitute any of its officials 
or members, officers or employees of the State. On the 
contrary, Section 10, in part, reads as follows:

“They [members of the State Central Committee] 
shall never be considered as officers or employees of 
the State of Louisiana or any of its subdivisions.”

The defendants, who are members of the political party 
and not officers or employees of the State of Louisiana, 
were selected as commissioners, pursuant to Section 61 
of said act. They were chosen by lot from a list of names 
furnished by the candidates. It is the candidates, them­
selves, who name the commissioners. The commissioners 
do not act for or on behalf of the State of Louisiana. They 
are not officers or employees of the State of Louisiana. 
They are officers of a political party. They act for and 
on behalf of the political party, and not for and on behalf 
of the State of Louisiana, and therefore do not act under 
color of any law of the State of Louisiana. In one sense 
they are the representatives of the candidates, who alone 
have the right to name them, and the Parish Committee



15

merely sees that a fair drawing of the names of the 
commissioners is conducted. The Parish Committee which 
supervises the drawing is merely an agency of the party 
and not of the State.

REVIEW OF PARTY PRIMARY ELECTION LAWS OF
LOUISIANA.

The Constitution of Louisiana of 1921 which is the 
present organic law of the State, provides for the enact­
ment of laws to secure fairness in party primaries, con­
ventions, etc.9

All State enactments of the legislature on that subject 
would, of course, be subordinate to that provision. That 

■ enactment shows clearly that it was the intention of the 
framers thereof not to disturb the fundamental concept 
of the political party system as a self governing volun­
tary organization. That provision would prohibit the legis­
lature from fixing the qualifications of the voters. That 
important matter being left to be prescribed by the party, 
showing that it was recognized by the organic law of the 
State that a primary is nothing but a voluntary organiza­
tion for the purpose of expressing party preference.

9 Sec. 4, Art. 8. “The Legislature shall enact laws to secure fairness in party primary elections, conventions, or other methods of naming party candidates. No person shall vote at any primary election or in any ̂ convention or other political assembly held for the purpose of nominating any candidate for public office, unless he is at the time 
a registered voter, and have such other and additional qualifications as may be prescribed by the party of which candidates for public office are to be nominated. And in all political conventions in this State, the apportionment of representation shall be on the basis of popula­tion.”



16
Act 46 of 1940 is the existing law which regulates the 

primaries, and was enacted to insure fairness in any 
primary called by a political party. It is a comprehensive 
law consisting of 48 pages of regulatory provisions. It 
has been adopted in the exercise of the police power of 
the state, as recognized in the aforesaid constitutional 
provision.

Its aim has not been to take control of the affairs of 
the party or to deprive it of any of its rights, but simply 
to act upon and regulate existing conditions, with a single 
view to the public interest.

From beginning to end all of the organization and in­
ternal operation of the party, as well as the conduct of 
the nominating primary is left entirely in the hands of 
the officers and members of the party. In fact, all officers 
and employees of the State or its subdivisions are pro­
hibited from remaining at or near the polls.

Sec. 1 provides that nominations of all political parties 
shall be by direct primary elections.

Sec. 2 defines the term “political party” to be one that 
shall have cast 5% of the entire vote in certain preceding 
elections.

Sec. 5 provides for the election of the members of the 
governing body of the party which is known as the “State 
Central Committee,” as well as the subordinate commit­
tees of the party.



17

Sec. 9 provides for the duty of the Chairman of the State 
Central Committee to appoint interim officers of subordi­
nate committees.

Sec. 10 relates to the election of the State Central Com­
mittee and provides that they shall never be considered 
officers or employees of the State of Louisiana, or any 
of its subdivisions.

That provision was placed in the act no doubt by the 
legislature in an abundance of precaution in order to 
eliminate any question concerning the status of the party 
and its officers, members and employees.

Sec. 14 being important as showing that the State Cen­
tral Committee is the governing body of the party is 
quoted in full, as follows:

“The State Central Committee of each party, as 
defined herein, is hereby vested with full power and 
authority to make and adopt any and all rules and 
regulations for its government and for the govern­
ment of any committee in this Act authorized to be 
created, which are not inconsistent with the Constitu­
tion and laws of the State of Louisiana or the Con­
stitution and laws of the United States. It shall have 
full and complete authority to provide the conditions 
under which its members may vote by proxy; to pro­
vide for the payment of the expenses of its officers 
and employees.”

Sec. 31-a provides for a cash deposit from candidates 
and,



18
Sec. 31-e authorizes the committee to levy, assess and 

collect from each candidate additional cash to be used for 
incidental and other expenses in connection with the 
primary; it further provides for the return of the cash 
deposit if it shall remain unexpended in said primary 
election.

Sec. 35 provides for the payment of the expenses of the 
primary, as follows:

(a) Printing ballots, stationery and supplies and trans­
mission of returns—paid by state;

(b) Holding of elections such as payment of commis­
sioners, rent of polling places, etc.—paid by municipali­
ties, parishes, cities, etc.;

(c) All other expenses paid by candidates.

In the Grovey 10 case, one of the reasons stated in the 
opinion, showing that the action of the officials of the 
party was not the act of the state, was that the State of 
Texas did not pay any of the expenses of the primary.

That was only one of many cumulative reasons, and 
was not the sole test. We do not understand that case to 
hold that if the State did donate or appropriate money 
for a public purpose such as the payment of the expenses 
of a primary, that the organization receiving the benefit 
would by that fact alone be constituted a creature of 
the State. The fact that the State did not pay such ex­
penses would be a factor to consider in determining

i° Grovey v. Townsend, 295 U. S. 45.



19

whether the acts of the party were state action, but the 
converse of this would not logically follow.

The Federal Government today subsidizes many public 
operations; witness, the extensive grants to cities, counties, 
and states and their subdivisions under the now familiar 
Works Progress Administration, to cite but one example. 
It would be just as anomalous to argue that the political 
party receiving the benefit of the grant in the form of the 
payment of part of the expense of the primary, became 
by that fact alone, the creature of the State, as it would 
be to argue that the cities, counties and states and their 
subdivisions receiving the benefit of the W. P. A. sub­
sidies became the creatures of the Federal government 
by reason of such grant or subsidy.

In this case the state pays only a minor part of the ex­
penses, the balance being paid by the municipalities and 
the candidates.

The criterion should not be the payment of the expense 
of the primaries. The fundamental concept of the nature 
of political parties should alone be considered. That 
concept is that they are voluntary political associations, 
regulated by the State, but operated by their own officers 
and members. That is the concept the legislature had in 
mind in passing the act, and following the intent of the 
lawmakers is the cardinal principle of statutory con­
struction.

The organic law of this State makes that purpose clear, 
and the Legislature recognized it as such in providing 
that the members of the State Central Committee should



20

not be considered as officers or employees of the State, 
or any of its political subdivisions. The greater always in­
cludes the lesser, and it could not be successfully con­
tended that the subordinate committees under the control 
and direction of the State Central Committee were officers 
or employees of the State, or any of its subdivisions. A 
fortiori is that true of any of the lesser officers or em­
ployees of the party such as the defendants in this case, 
who acted as commissioners at the primary. They were 
merely officers of the party.

They were not paid by the State, but by the City of 
New Orleans. The fact that they received five dollars for 
the services they performed that day from the City of 
New Orleans, would not any more make them officers or 
employees of the City or State than would some inde­
pendent contractor, such as a plumber called in by the 
City to do a single day’s work for the sum of $5.00 be 
considered in law an officer or employee of the City. We 
have to look to the intent of the law to determine their 
status.

No doubt in such a broad subject as this, various narrow, 
technical points such as the aforesaid could be advanced 
and argued to sustain the position taken by appellant that 
the conduct of the primary was State action—hence the 
defendants acted under color of a law.

Such arguments should not be indulged. The intent of 
the legislature as reflected in the organic law of the State 
should control, and the legislature could not have made 
it plainer that they did not intend the conduct of the party



21

primary to be the action of the State than to specifically 
provide that the members of the governing body should 
not be officers or employees of the State or any of its 
subdivisions.

Sec. 96 indicates that the State intends that the primary 
be conducted without interference from any officer or 
employee of any municipality or any subdivision of the 
State for it prohibits such officer or employees from ap­
pointing special police to serve at any polling place, and

Sec. 97 prohibits State police, or any person having 
the power and authority of making arrests, or carrying 
arms, or who perform the duties and functions which are 
usually performed by police officers from going to, or 
remaining at, or being stationed at, or exercising or at­
tempting to exercise any authority at any polling place 
or in the immediate vicinity of any polling place in any 
primary election.

Sec. 94 makes officers or employees of the State or any 
of its subdivisions ineligible as watchers or special deputies.

The aforesaid provisions, being clearly for the purpose 
of leaving the conduct of the election to the party, and 
its officers, without danger of interference on the part of 
the officers or employees of the State. The other sections 
throw no light on the subject; they detail the manner of 
conducting the election, election contests, second primaries, 
etc.



22

It is also to be noted that the general elections are gov­
erned by an entirely different act,11 and are provided for 
by a different Article of the Constitution.* 12

Therefore, it seems that on the face of the indictment, 
Count 2 fails to set forth an essential element of the crime, 
that is to say, that these defendants acted under color of 
a State law.

STATE REGULATION OF POLITICAL PARTY DOES 
NOT CONSTITUTE IT CREATURE OF STATE.

The fact that a political party, and its nominating 
primary is regulated by State law, does not by that fact 
alone make it a creature of the State, nor does it make 
the party’s officials, officers or employees of the State of 
Louisiana.

To so hold would be equivalent to finding that any busi­
ness, trade or profession which is regulated by State law 
constitutes such business, trade or profession the creature 
of the State which regulates it. In these modern times, 
and because of the complexity of our economic system, it 
becomes increasingly necessary for the State to exercise 
its police power in the interest of the safety, health and 
well-being of the citizens, by regulating various political, 
economic and social acitivities.

n Act 130 of 1916.12 Art. 8, Sec. 9, et seq.



23

Many activities have been held the proper subject for 
regulation.13

In origin political parties were purely voluntary asso­
ciations;14 had inherent power to determine their own 
membership and to regulate the participation in their 
primaries,15 * and were not state instrumentalities.10 They 
are so affected with a public interest that they are sub­
ject to regulation under the general power of the state to 
supervise the entire election system,17 by legislative en­
actments,18 which have actually been promulgated in all 
the states except Connecticut, New Mexico, Rhode Island 
and Utah.

The question therefore, is one of determining whether 
the fact that a state has undertaken to regulate political 
parties and their primaries makes the conduct of primary 
election officers state action.

The fact that a state has done so should not make such 
conduct state action,19 for the primary is still the same

13 12 C. J. Sec. 432. “Particular Subjects of Regulation— a. Occupa­tions. The following named occupations and persons engaged therein are proper subjects of regulation under the police power, namely, agriculture, attorneys at law, auctioneers, banking, barbers, brokers, building and loan associations, carriers, carpet beating by steam power, corporations, dentists, detectives, druggists, employment agencies, fac­tors, ferries, garages and garage keepers, haekmen, hawkers and ped­dlers, junk dealers, innkeepers, insurance,_ laundries, livery-stable keepers, mining, pawn-brokers, physicians, pilots, plumbers, railroads, sale of securities, secondhand dealers, slaughterhouses, street railroads, telegraphs and telephones, ticket brokers, warehousemen, and wharf­
ingers.”14 Merriam American Political Ideas (1920); Ray, An Introduction 
to Political Parties and Practical Politics (1913).is Socialist Party v. Uhl, 155 Cal. 776, 103 Pac. 181 (1909).10 Kearns v. Hamlett, 188 Pa. 116 Atl. 273 (1892); McKare v. Adams, 
123 N. Y. 609, 25 N. E. 1057 (1890).17 People v. Board of Election Comm., 221 Del. 9, 77 S. E. 311 (1906).
18 Lett v. Dennis, 129 So. 33 (Ala. Sup. 1930).79 Cunningham v. McDernett, 277 S. W. 218 (Tex. 1925); Kay v. 

Schneider, ilO Tex. 369.



24

as and a substitution for the old caucus and convention.20 
If statutory regulation made men public officials, when 
they were admittedly not exercising a governmental func­
tion, though their function did involve the general public 
interest, then railroad conductors, physicians, and many 
business and professional men would be public officers.21

The medical profession has for many years been the 
subject of regulation by the state in the interests of the 
health and public welfare of the communities of this 
nation. Yet, we do not believe that anyone would argue 
that because the States have seen fit to regulate that 
profession by comprehensive systems of law, that the 
medical profession is a creature of the State, or that 
any of its members are officers or employees of the State 
by reason of any such law.

We do not believe that anyone would argue that if the 
medical profession formed an organization to further its 
own objects and purposes, and would hold any kind of an 
election pertaining to its own affairs, that any irregulari­
ties of fraud practiced in such election would be the sub­
ject of an indictment, under Sections 51 or 52.

So by analogy it seems that if citizens see fit to organize 
for political purposes instead of professional purposes, and 
their organization, being affected with a public interest, 
is regulated by laws of the State, that such a voluntary 
organization is not any more subject to prosecution under 
Sections 51 and 52, than would be the voluntary associa­

20 Hamilton v. Davis, 217 S. W. 431 (Tex. 1920).21 People v. Brady, 302 111. 576, 135 N. E. 87 (1922); Faxwell v. Beek, 177 Md. 1, 82 Atl. 657 (1912); Greenough v. Lucey, 28 R. I. 230, 66 
Atl. 300 (1907).



25

tion of the medical profession or any other business, trade 
or profession affected with a public interest.

POINT 4.

Argument Based On Jurisprudence Of This Court As To 
Whether Primary Is An Election Within Meaning Of 
Sec. 4 Of Art. 1 Of The Constitution.

It has been held that the right to vote and to have said 
vote properly counted at a general election, is a right 
secured to citizens by the Constitution and laws of the 
United States.22 The theory of this jurisprudence is that 
since Section 4 of Article I of the Constitution of the 
United States provides for the time, place and manner 
for holding elections for members of Congress that Con­
gress has a right to regulate and control by statute the 
elective franchise insofar as it pertains to the election 
of members of Congress.

There is no case that our research has disclosed which 
has ever held that Section 4 of Article I would extend to, 
or embrace free and voluntary associations for political 
action such as the political party which selected its party 
nominee in this State on September 10, 1940.

On the contrary, this court has held that the only source 
of power which Congress, prior to the adoption of the 
Seventeenth Amendment,23 possesses for election, over

22 U. S. v. Mosley, 238 U. S. 383; Ex parte Yarbrough, 110 U._ S. 652.23 The 17th Amendment has no bearing on this case as it_ applies only to Senatorial elections, this being a primary for a nomination of a member of the House of Representatives.



26

senators and representatives was Section 4, of Article I, 
of the Constitution, which empowers Congress to regulate 
the manner of holding such elections, and that this did 
not give Congress the power to regulate primary elections 
for the purpose of selecting candidates for Congress.

This court has held that primaries are in no sense 
elections for an office, but merely methods by which 
party adherents agree upon candidates whom they intend 
to offer to support for ultimate choice by all qualified 
electors. The court has further held that general pro­
visions affecting elections in Constitutions or statutes are 
not necessarily applicable to primaries,—the two things 
being radically different.24

The constitutional question came before the Supreme 
Court in the famous Newberry case in 1921.25 Truman
H. Newberry was elected senator from Michigan in 1918. 
He and sixteen associates or agents were convicted 
in the federal district court and variously sentenced 
to fine and imprisonment for conspiring to violate the 
federal corrupt practices acts. It was shown at the 
trial that disbursements of at least $195,000 had been 
made in Newberry’s primary campaign, although the 
Michigan law (applicable under the federal statute) al­
lowed a maximum of only $1,875, that is, 25 per cent of the 
senatorial salary. Upon appeal, however, the Supreme 
Court unanimously reversed the conviction.26

24 Newberry v. U. S., 256 U. S. 232; U. S. v. Gradwell, 243 U. S. 476; 
Grovey v. Townsend, 295 U. S. 45; Nixon v. Herndon, 273 U. S. 536; Nixon v. Conden, 286 U. S. 73; U. S. v. O’Toole, 236 F. 993.
25 Newberry v. U. S., 256 U. S. 232.26 The Senate, being the sole judge of the qualifications of its mem­bers, accepted the decision of this Court by voting to permit Newberry 

to take his seat as a member of that body.



27

All of the justices agreed to the decision, but did not 
concur in the reasons. (1) Justice McReynolds (Justices 
Day, Holmes, and Van Devanter concurring) held that a 
primary is not an election within the meaning of Article I, 
Section 4, of the Constitution, and that therefore the act 
of 1911 was unconstitutional in its attempted application 
to primaries. (2) Justice McKenna was of the opinion 
that the regulation of senatorial primaries exceeded the 
power of Congress as it stood in 1911, but reserved the 
question as to whether it would have been constitutional 
if enacted after the ratification of the Seventeenth Amend­
ment.2' (3) Chief Justice White (Justices Brandeis, Clark 
and Pitney concurring) agreed to the results but on the 
ground of prejudicial error in the trial judge’s charge 
to the jury, upholding however, the authority of Congress 
to regulate primaries. Thus three different positions were 
taken: according to four justices, Congress had no power 
to regulate senatorial primaries before the Seventeenth 
Amendment and acquired none by its adoption; accord­
ing to one justice, Congress had no such power before the 
amendment, but might possibly have acquired it through 
the adoption of the amendment insofar as senatorial elec­
tions are concerned; and, according to four justices, Con­
gress always had such power. As applied to the facts in 
our case it would simply have been a five to four decision.

In speaking of primaries the majority opinion in that 
case stated that they,

“are in no sense elections for an office, but merely
methods by which party adherents agree upon candi-

2j It is to be noted that the 17th Amendment applies only to Sena­torial elections, and that amendment could not have troubled Justice McKenna if the election had been for a member of the House of Representatives as in the instant case.



2 8

dates whom they intend to offer and support for ulti­
mate choice by the qualified electors. General pro­
visions touching elections in constitutions or statutes 
are not necessarily applicable to primaries—the two 
things are radically different. And this view has 
been declared by many state courts. . . . If it be 
practically true that under present conditions a desig­
nated candidate is necessary for an election,—a pre­
liminary thereto,—nevertheless his selection is in no 
real sense part of the manner of holding the election. 
This does not depend upon the scheme by which 
candidates are put forward. Whether the candidate 
be offered through primary, or convention, or petition 
or request of a few, or as the result of his own un­
supported ambition, does not directly affect the man­
ner of holding the election. Many things are pre­
requisite to elections or may affect their outcome— 
voters, education, means of transportation, health, 
public discussion, immigration, private animosities, 
even the face and figure of the candidate; but author­
ity to regulate the manner of holding them gives no 
right to control any of these. . . . Birth must precede, 
but it is no part of funeral or apotheosis. We cannot 
conclude that authority to control party primaries 
or conventions for designating party candidates was 
bestowed on Congress by the grant of power to regu­
late the manner of holding elections. The fair intend­
ment of the words does not extend so far; the framers 
of the Constitution did not ascribe to them any such 
meaning. Nor is this control necessary in order to 
effectuate the power expressly granted. On the other 
hand, its exercise would interfere with the purely 
domestic affairs of the state and infringe upon liber­
ties reserved to the people.”



29

JURISPRUDENCE OF STATE COURTS DISTINGUISH­
ING BETWEEN PRIMARY AND ELECTION.

The state courts also differentiate in general between a 
nominating primary and an election, holding the two to 
be distinct and apart.28 More particularly, it has been held 
that primary elections to choose delegates to conventions 
are not within constitutional or statutory requirements in 
regard to elections;29 that primary elections are not a part 
of the general election because held at the same time as 
the latter with the same machinery merely for conven­
ience and economy;30 that primaries are not elections 
within the common law meaning of the term;31 that laws 
providing for the determination of contested elections do 
not apply to primary elections;32 that a statute making it a 
misdemeanor to place any bet or wager on any election 
did not apply to primaries;33 that a statute disqualifying 

• a person from holding office when he shall have given a 
bribe, threat or reward to secure his election did not apply 
to primaries;84 and that it is not an offense for officials

28 State v. Erickson, 119 Minn. 152, 156, 137 N. W. 385 (1912); State v. Taylor, 220 Mo. 618, 119 S. W. 373 (1909); Ledgerwood v. Pitts, 122 Tenn. 510, 587, 125 S. W. 1036 (1910); Commonwealth v. Wells, 110 Pa. St. 463, 468, (1885); People v. Cavanaugh, 112 Cal. 674, 676, 677, 44 P. 1057 (1896); Martin v. Schulte, 182 N. E. 703 (Ind. 1932); Sawyer v. Frankson, 134 Minn. 258, 159 N. W. (1916); Kay v. Schneider, 110 Tex. 369, 876, 218 S. W. 479, 221 S. W. 880 (1920); Waples v. Marrast, 108 Tex. 511, 184 S. W. 180, L. R. A. 1917 A. 253 (1916).
29 State v. Woodruff, 68 N. J. L. 89, 56 Atl. 204 (1902).30 State ex rel. McCue v. Blaisdeel, 18 N. D. 55, 118 N. W. 141 (1908). 81 State v. Woodruff, 68 N. J. L. 89, 56 Atl. 204 (1902); Hester v.Brunland, 80 Ark. 145, 95 S. W. 992 (1906); Lowe v. Bd. of Election Canvassers, 154 Mich. 329, 117 N. W. 730 (1908); State v. Johnson, 87 Minn. 221, 91 N. W. 604 (1902); State ex rel. Zent v. Nichols, 50 Wash. 508, 97 Pac. 728 (1908).32 Jones v. Fisher. 156 Iowa 512. 137 N. W. 940 (1912).33 Lillard v. Mitchell, 37 S. W. 702 (Tenn. Ch. App. 1896); Common­wealth v. Helm, 9 Kv. L. Rep. 532 (1887); Dooley v. Jackson, 104 Mo. App. 21, 78 S. W. 330 (1904).84 Gray v. Seitz, 162 Ind. 1, 69 N. E. 456 (1904).



30

at primaries to electioneer, when the general election laws 
forbid it.35

MEANING OF WORD ELECTION AS USED IN ART. I, 
SEC. 4 OF THE CONSTITUTION.

Art. I, Sec. 4 provides:

“The times, places and manner of holding elections 
for senators and representatives shall be prescribed in 
each State by the Legislature thereof; but the Con­
gress may at any time by law make or alter such 
regulations, except as to the places of choosing Sen­
ators.” (Italics supplied.)

If the word “elections” , as used in this section of the 
Constitution, is by a process of judicial interpretation held 
to include the manner by which a voluntary association, or 
political party selects its candidates by direct primary, 
(a concept unknown by the framers of the Constitution), 
then we may logically conclude that Congress may pass 
laws to regulate the internal affairs of political parties, 
and dictate the time, place and manner of their selection or 
nomination of the candidate they will support in the 
ensuing general election, or may prohibit the holding of 
primaries altogether.

This court has never gone that far in the history of the 
nation. Even in the celebrated series of Texas primary 
cases, this court has not adopted the theory that the 
primary was an election, as witness the case of Nixon v.

35 State v. Simmons, 117 Ark. 159, 174 S. W. 238 (1915).



31

Herndon, 273 U. S. 536, where the court did not adopt 
the theory that exclusion from a primary by specific state 
law would constitute a denial of the right to vote within 
the meaning of the 15th Amendment, which reads in 
part as follows:

“The right of citizens of the United States to vote 
shall not be denied or abridged by the United States 
or by any State on account of race, color or previous 
condition of servitude.” (Italics supplied.)

but found the law unconstitutional exclusively under the 
equal protection clause of the 14th Amendment. This 
court once again refused to proceed under the 15th 
Amendment, but proceeded exclusively under the 14th 
Amendment in the case of Nixon v. Condon, 286 U. S. 73, 
in declaring the Texas statute unconstitutional as being 
a delegation of legislative authority, hence, state action, 
when the legislature passed a law giving to the State 
Executive Committee authority to determine the qualifi­
cation of the voter who might participate in the primary, 
when the committee passed a rule that only white persons 
could vote.

The power conferred upon Congress in Sec. 4 of Art. I 
is a limited power. It was not intended to deprive the 
people of the States of their freedom with respect to 
their political activities.

The Article gives the Congress the right to regulate, 
“The times, places, and manner of holding elections,” 
and nothing more.



32

At one time in our constitutional history Congress has 
seen fit to assert this power in the famous so-called force 
bills of 1870.

Since Congress asserted its power to the fullest extent, 
in those enforcements Acts of 1870, the limitation upon 
their power is illustrated by a consideration of the history 
of those bills which will be found in United States v. Grad- 
well, 243 U. S. 476, 482-484, as follows:

“Although Congress has had this power of regulat­
ing the conduct of congressional elections from the 
organization of the Government, our legislative his­
tory upon the subject shows that, except for about 
twenty-four of the one hundred and twenty-eight 
years since the Government was organized, it has 
been its policy to leave such regulations almost en­
tirely to the States, whose representatives Congress­
men are. For more than 50 years no congressional 
action whatever was taken on the subject until 1842 
when a law was enacted requiring that Representa­
tives be elected by Districts (5 Stat. 491), thus doing 
away with the practice which had prevailed in some 
States of electing on a single State ticket all of the 
Members of Congress to which the State was entitled.

“Then followed twenty-four years more before fur­
ther action was taken on the subject when Congress 
provided for the time and mode of electing United 
States Senators (14 Stat. 243) and it was not until 
four years later, in 1870, that, for the first time, a 
comprehensive system for dealing with congressional 
elections was enacted. This system was comprised 
in Sections 19, 20, 21 and 22 of the Act approved May 
31, 1870, 16 Stat. 144; in Sections 5 and 6 of the Act 
approved July 14, 1870, 16 Stat. 254; and in the Act



33

amending and supplementing these acts, approved 
June 10, 1872, 17 Stat. 347, 348, 349.

“These laws provided extensive regulations for the 
conduct of congressional elections. They made un­
lawful, false registration, bribery, voting without legal 
right, making false returns of votes cast, interfering 
in any manner with officers of election and the neg­
lect by any such officer of any duty required of him 
by state or federal law; they provided for appoint­
ment by Circuit Judges of the United States of per­
sons to attend at places of registration and at elec­
tions, with authority to challenge any person pro­
posing to register or vote unlawfully, to witness the 
counting of votes and to identify by their signatures 
the registration of voters and election tally sheets; 
and they made it lawful for the marshals of the 
United States to appoint special deputies to preserve 
order at such elections, with authority to arrest for 
any breach of the peace committed in their view.

“These laws were carried into the revision of the 
United States Statutes of 1873-4, under the title 
Crimes against the Elective Franchise and Civil 

Rights of Citizens,’ Rev. Stats., Sections 5506 to 5532, 
inclusive.

“It will be seen from this statement of the impor­
tant features of these enactments that Congress by 
them committed to federal officers a very full partici­
pation in the process of the election of Congressmen, 
from the registration of voters to the final certifying 
of the results, and that the control thus established 
over such elections was comprehensive and complete. 
It is a matter of general as of legal history that Con­
gress, after twenty-four years of experience, returned 
to its former attitude toward such elections and re­
pealed all of these laws with the exception of a few



34

sections not relevant here. Act approved February 
8, 1894, 28 Stat. 36. This repealing act left in effect 
as apparently relating to the elective franchise, only 
the provisions contained in the eight sections of Chap­
ter 3 of the Criminal Code, Sections 19 to 26, inclu­
sive, which have not been added to or substantially 
modified during the twenty-three years which have 
since elapsed.”

A distinction is at once apparent between the regulation 
of the manner of holding elections, in order to protect 
the right of the voter in casting his vote, and to secure 
a fair count of the vote; and the attempt to interfere with 
or control the activities of the people of the States in the 
conduct of political campaigns and the nominating process.

Alexander Hamilton in The Federalist, in meeting the 
serious criticism which the proposed provision had evoked, 
said:

“As to the Senate, it is impossible that any regula­
tion of ‘time and manner’, which is all that is pro­
posed to he submitted to the national government 
in respect to that body, can affect the spirit which 
will direct the choice of its members.” (Italics ours.) 
(The Federalist, No. LX.)

And again Mr. Hamilton said, in answering an objection 
with respect to the regulation of places for the election of 
members of the House of Representatives that these might 
be confined to particular districts so as to promote the 
interests of classes:

“The truth is, that there is no method of securing 
to the rich the preference apprehended, but by pre­
scribing qualifications of property either for those



35

who may elect or be elected. But this forms no part 
of the power to be conferred upon the national gov­
ernment. Its authority would be expressly restricted 
to the regulation of the times, the places, the manner 
of elections. The qualifications of the persons who 
may choose or be chosen, as has been remarked upon 
other occasions, are defined and fixed in the Constitu­
tion, and are unalterable by the Legislature.”

See, also:

Luther Martin’s “Genuine Information”, in Far- 
rand’s Records of Federal Convention, Vol. 3, 
pp. 194, 195;

Rufus King in Massachusetts Convention, Farrand’s 
Records, Vol. 3, p. 267;

James Madison in Virginia Convention, Farrand’s 
Records, Vol. 3, pp. 311, 319;

William R. Davie in North Carolina. Convention, 
Farrand’s Records, Vol. 3, pp. 344, 345;

Roger Sherman in House of Representatives, Far­
rand’s Records, Vol. 3, p. 359.

The Constitution gives to Congress no power to regulate 
the process of nomination.

The first time the question came before this court was 
in the Gradwell case, supra. The Court said (pp. 487-489):

“The constitutional warrant under which regula­
tions relating to congressional elections may be pro­
vided by Congress is in terms applicable to the ‘times, 
places and manner of holding elections (not nomi­
nating primaries) for Senators and Representatives.’ 
Primary elections, such as it is claimed the defend­
ants corrupted, were not only unknown when the 
Constitution was adopted but they were equally un­



36

known for many years after the law, now Section 19, 
was first enacted. They are a development of com­
paratively recent years, designed to take the place 
of the nominating caucus or convention, as these ex­
isted before the change, and even yet the new sys­
tem must be considered in an experimental stage of 
development, under a variety of State laws.

“The claim that such a nominating primary, as dis­
tinguished from a final election, is included within 
the provision of the Constitution of the United States 
applicable to the election of Senators and Representa­
tives is by no means indisputable. Many state su­
preme courts have held that similar provisions of 
state constitutions relating to elections do not include 
a nominating primary. Ledgerwood v. Pitts, 122 Ten­
nessee, 570; Montgomery v. Chelf, 118 Kentucky, 766; 
State ex rel. Von Stade v. Taylor, 220 Missouri, 619; 
State v. Nichols, 50 Washington, 508; Gray v. Seitz, 
162 Indiana, 1; State v. Erickson, 119 Minnesota, 152.

“But even if it be admitted that in general a pri­
mary should be treated as an election within the 
meaning of the Constitution, which we need not and 
do not decide, such admission would not be of value 
in determining the case before us, because of some 
strikingly unusual features of the West Virginia law 
under which the primary was held out of which this 
prosecution grows. By its terms this law provided 
that only candidates for Congress belonging to a 
political party which polled three per cent of the 
vote of the entire State at the last preceding general 
election could be voted for at this primary, and there­
by it is said at the bar, only Democratic and Republi­
can candidates could be and were voted for, while 
candidates of the Prohibition and Socialist parties 
were excluded, as were also independent voters who 
declined to make oath that they were ‘regular and



37

qualified members and voters’ of one of the greater 
parties. Even more notable is the provision of the law 
that after the nominating primary, candidates, even 
persons who have failed at the primary, may be nomi­
nated by certificate signed by not less than five per 
cent of the entire vote polled at the last preceding 
election. Acts West Virginia, 1915, c. 26 pp. 222, 246.

“ Such provisions as these, adapted though they may 
be to the selection of party candidates for office, ob­
viously could not be lawfully applied to a final elec­
tion at which officers are chosen, and it cannot rea­
sonably be said that rights which candidates for the 
nomination for Senator of the United States may have 
in such a primary under such a law are derived from 
the Constitution and laws of the United States. They 
are derived wholly from the state law and nothing of 
the kind can be found in any federal statute. Even 
when Congress assumed, as we have seen, to provide 
an elaborate system of supervision over congres­
sional elections no action was taken looking to the 
regulation of nominating caucuses or conventions, 
which were the nominating agencies in use at the 
time such laws were enacted.

“What power Congress would have to make regula­
tions for nominating primaries or to alter such regula­
tions when made by a State we need not inquire. It 
is sufficient to say that as yet it has shown no disposi­
tion to assume control of such primaries or to partici­
pate in them in any way, and that it is not for the 
courts, in the absence of such legislation, to attempt 
to supply it by stretching old statutes to new uses, 
to which they are not adapted and for which they 
were not intended. In this case, as in the others, we 
conclude that the section of the Criminal Code relied 
upon, originally enacted for the protection of the 
civil rights of the then lately enfranchised negro,



38

cannot be extended so as to make it an agency for 
enforcing a state primary law, such as this one of 
West Virginia.

“The claim that the Federal Corrupt Practices Act 
(June 25, 1910, c. 392, 36 Stat. 822, amended August 
19, 1911, c. 33, 37 Stat. 25, and August 23, 1912, c. 349, 
37 Stat. 360), recognizing primary elections and limit­
ing the expenditures of candidates for Senator in con­
nection with them is, in effect, an adoption by Con­
gress of all state primary laws is too unsubstantial 
for discussion; and the like claim that the temporary 
measure (Act of June 4, 1914, 38 Stat. 384), enacted 
by Congress for the conduct of the nomination and 
election of Senators until other provision should be 
made by state legislation cannot be entertained, be­
cause this act was superseded by the West Virginia 
primary election law, passed February 20th, 1914, 
effective ninety days after its passage.”

The question again arose in United States v. Blair, 250 
U. S. 273, where the Court said (pp. 278-279):

“It is maintained further that, because of the in­
validity of these statutes, neither the United States 
District Court nor the Federal Grand Jury has juris­
diction to inquire into primary elections or to indict 
or try any person for an offense based upon the 
statutes, and therefore the order committing appel- 
ants is null and void.

“ The same constitutional question was stirred in 
United States v. Gradwell, 243 U. S. 476, 487, but its 
determination was unnecessary for the decision of the 
case, and for this reason it was left undetermined, as 
the opinion states. Considerations of propriety, as 
well as long-established practice, demand that we re­
frain from passing upon the constitutionality of an



39

Act of Congress unless obliged to do so in the proper 
performance of our judicial function, when the ques­
tion is raised by a party whose interests entitle him 
to raise it.

“We do not think the present parties are so entitled, 
since a brief consideration of the relation of a wit­
ness to the proceeding in which he is called will suf­
fice to show that he is not interested to challenge the 
jurisdiction of court or grand jury over the subject- 
matter that is under inquiry.”

And, referring to some of the State cases, the District 
Court in United States v. O’Toole, 236 Fed. 993, 996, (heard 
with United States v. Gradwell, 243 U. S. 476 and af­
firmed), said:

“We think it may be said both on reason and au­
thority that, where the word ‘election’ is used without 
qualification, the reference is to a general election, as 
distinguished from a primary election. State v. John­
son, 87 Minn. 221, 91 N. W. 604, 840; Montgomery v. 
Chelf, 118 Ky. 766, 82 S. W. 388; Gray v. Seitz, 162 
Ind. 1, 69 N. E. 456. Certainly it cannot be contended 
that the choosing or election by the qualified electors 
provided for by Section 2 of Article 1 of the Con­
stitution of the United States includes the selection 
of party candidates by primary election, for at that 
time such elections were unknown. We can find no 
provision of the Constitution of the United States or 
of an act of Congress which either directly or by im­
plication warrants the Court in holding that the pro­
tection of the federal government extends to the right 
of any citizen to participate in a party endorsement 
of a candidate through a primary election or other­
wise. The right is created by party rules or state 
legislation, and the remedy, if there be one, must be 
derived from the same source.”



40

The specific point at issue here is—what did the authors 
of the Constitution mean by the term “election” which 
they used in the article?

A so-called nominating primary was unknown at the 
time the Constitution was adopted. It was born about 
100 years after the adoption of the Constitution.

A nominating primary is not an election any more than 
the nominating convention or its predecessor the caucus 
is an “election” .

What the term “elections” meant at the time of the 
adoption of the Article it means now.

That distinction is undoubtedly what Mr. Justice Mc­
Kenna had in his mind, in reserving judgment on cases 
that came up involving statutes passed to regulate the 
election of Senators after the passage of 17th Amendment. 
No doubt Mr. Justice McKenna felt it may be argued that 
since the nominating primaries were known at the time 
of the passage of the 17th Amendment that the language 
used in the 17th Amendment may be sufficiently broad 
to cover the nomination process in senatorial elections. 
However, that question has never been decided, and is not 
before the Court in this case.

In Hawke v. Smith, No. 1, 253 U. S. 221, this court said:

“The only question really for determination is: 
What did the framers of the Constitution mean in 
requiring ratification by ‘Legislatures’? That was 
not a term of uncertain meaning when incorporated 
into the Constitution. What it meant when adopted



41

it still means for the purpose of interpretation. A 
Legislature was then the representative body which 
made the laws of the people. The term is often used 
in the Constitution with this evident meaning. * * * 

“There can be no question that the framers of the 
Constitution clearly understood and carefully used 
the terms in which that instrument referred to the 
action of the legislatures of the States.”

That case is clearly decisive of the fact that the proper 
method of determining the meaning of a word in the 
Constitution is to ascertain its meaning at the time of the 
adoption of the Constitution. Whatever it meant then it 
means now.

Just as the Court in the Hawke case, supra, said, that 
the word “Legislature” was to be construed to have the 
same meaning at the time that case was decided as it had 
when the Constitution was adopted; so we say, that direct 
primaries being unknown at the time of the adoption of 
the Constitution, that the word “ election” should be con­
strued in accordance with its well-defined meaning at 
the time of the adoption of the Constitution. It cannot 
be reasonably disputed that the term “election” as used 
in Sec. 4 of Art. 1 had reference to the taking of the vote 
for the office of the Congress of the United States.

It might be argued that this contention conflicts with 
the familiar rule of Constitutional law, to the effect that, 
when a constitutional provision embodies a certain con­
cept, whatever is properly within the concept is embraced 
within the words of the Constitution, although it lay far 
beyond the vision of the framers of the Constitution.



42

Witness the application of the commerce clause of the 
Constitution to new instrumentalities of transportation 
and communication unknown to the framers of the Con­
stitution.

But this is so because those new instrumentalities are in 
fact interstate commerce, even though the fathers of the 
Constitution did not ever dream that such instrumentali­
ties or conditions would ever exist. They come within 
the meaning or definition of interstate commerce; the 
power exercised must be found within the definition of 
the power conferred. (See In re Debs, 158 U. S. 564, 591):

“The Constitution has not changed. The power is 
the same. But it operates today upon modes of in­
terstate commerce unknown to the fathers, and it 
will operate with equal force upon any new modes of 
such commerce which the future may develop.”

No one could logically say that the nominating process, 
whether by direct primary, caucus or convention comes 
within the definition of the power conferred upon Con­
gress by the Constitution to regulate “elections” . It seems 
clear that the nominating process is not embraced within 
the concept “elections” as that term was understood at 
the time of the adoption of the Constitution, and as it is 
presently understood as shown by the weight of author­
ity.36

The word “elections” standing alone has a very different 
meaning from that which it has when qualified by the 
word “primary” . “Primary elections” which evolved from 
the caucus and convention nominating system stand on no

38 See appendix, page 53.



43

different footing with respect to the meaning of this 
clause of the Constitution than did the old caucus or 
convention.

Therefore, Congress has no more power to regulate 
the primaries than it would have to regulate the conven­
tions in the several states which still use that method.

The States have begun to regulate the nominating 
process only in comparatively recent years. It is a matter 
of history that this Court could judicially notice, that at 
the time of the adoption of the Constitution, such regula­
tions were unknown. The States, of course, had laws 
governing the general elections, and it was such laws that 
were in the contemplation of the members of the Con­
stitutional conventions when they adopted Sec. 4 of Art. I, 
and they had no intention of delegating power to regulate 
the nominating process or otherwise surrender their politi­
cal freedom or they would have added some clause to that 
article to so indicate. At the time of the adoption of the 
constitution, primary elections being unknown, some de­
scriptive clause would have to be added to the words 
“times, places and manner of holding elections” , such as 
(“caucuses, conventions or other nominating processes” ) 
for no one would argue that a caucus or convention was an 
election, and if it is argued that the nominating process is 
included in the article, it would be necessary to urge that 
“elections” included caucuses and conventions because 
nominating primaries did not exist at that time.

If this Court, in the Hawke case, supra, would not ex­
tend the word “Legislatures” , as used in Article V, so as



44

to include the people themselves when voting in a referen­
dum, but restricted the word to the representative body, 
because as the Court said the word “Legislatures” was 
not a term of uncertain meaning when incorporated into 
the Constitution, and that what it meant when adopted 
it still means for the purpose of interpretation, a fortiori 
should the word “election” be restricted to the well-de­
fined meaning that it had when incorporated into the 
Constitution, because the fact that the framers of the 
Constitution intended it to be so restricted is more easily 
susceptible of ascertainment than was the case of the 
meaning of the word “Legislature” as interpreted in the 
Hawke case, supra.

In the Hawke case, supra, this Court in speaking of the 
word “Legislatures” said,

“The term is often used in the Constitution with 
this evident meaning.” [As referring to the repre­
sentative body.]

It might be of assistance to the court in resolving this 
question for us to examine other articles of the Constitu­
tion as was done in the Hawke case in an effort to ex­
amine the evident meaning of the word “elections” , as 
used in Sec. 4 of Art. I.

It appears that the other articles show that the term “elec­
tions” has exclusive reference to elections for the office 
itself, for the following reasons:

No other sort of elections was known at the time;



45

A nomination is not an election for Senator or Repre­
sentative, it is merely the selection of the candidate by 
the party to be supported at the ensuing general election.

Sec. 6, Art. I, Subdivision 2, provides,

“No Senator or Representative shall, during the 
time for which he was elected, be appointed to any 
civil office under the authority of the United States,” 
etc.

There the word “elected” could not possibly mean 
“nominated” for the Member of Congress is elected at the 
“election” and not before.

Sec. 2 of Art. I makes reference to “electors” . The 
“elections” of Members of Congress referred to in Sec. 
4 of Art. I, and the manner of holding which may be 
regulated by Congress, are the “elections” at which the 
“electors” referred to in Sec. 2 of Art. I vote. Those 
“electors” do not necessarily vote at the primaries. It is 
because they vote at the “elections” for Members of the 
House of Representatives that they are called “electors” . 
But the term “electors” like the term “elections” has no 
reference to a nominating primary. If the power is 
vested in Congress to regulate a nominating primary, it 
likewise is vested with power to regulate a nominating 
convention and the vote of delegates at a nominating con­
vention. Manifestly, such a vote is not an “election” 
and the delegates are not “electors” within the meaning 
of the Constitution.

The term “elections” as used in Sec. 4 of Art. I means 
clearly the final choice of persons for public office. The



46

clause itself refers to “elections for Senators and Repre­
sentatives” . The election is the taking of the vote for the 
persons who are to fill, when chosen, the public office in 
question. This is clearly shown by the context. The 
“time” of the election means the time when the choice 
of the public officer is made. The “place” means the 
location of the actual casting of the ballots—where the 
election is held. “The manner of holding” refers to the 
method of holding the election to determine that choice. 
The exception as to Senators shows that a nominating 
process was not intended because the Senators were 
elected by the Legislature—hence the power to fix the 
place for holding the “ elections” as to Senators was with­
held from Congress, thus emphasizing the point.

Insofar as the Federal Constitution is concerned, no 
nominating process is necessary to the election. The 
Constitution makes no attempt to control the political 
activity of the citizens with the exception of the matters 
concerning the times, places, and manner of holding elec­
tions. The political activities with the exceptions just 
noted were left with the local authorities.

Storey on the Constitution, Sections 815-828, states that 
Sec. 4 of Art. I was assailed by the opponents of the 
Constitution “with uncommon zeal and virulence” . The 
opponents were in a measure appeased by the assurance 
that was given them to the effect that the clause was 
confined to the regulation of the times, places, and manner 
of holding elections.



47

Alexander Hamilton, after reviewing the objection and 
defending clause in question as against the assertion of 
a broader power in Congress, thus stated the conclusion:

“Its authority” (that is, the authority of the Na­
tional Government) “would be expressly restricted to 
the regulation of the times, the places, and manner 
of elections.” (Italics, Hamilton’s; The Federalist, 
LX.)

This argument prevailed only because the opposition 
were assured and felt satisfied that only a limited power 
had been delegated to the national government, and it was 
on that basis that Alexander Hamilton, the great pro­
tagonist for the Constitution, was able successfully to 
defend the clause. He could never have defended the 
theory that the people were surrendering such rights to 
the Federal government as would authorize that sovereign 
power to supervise the methods that should be employed 
to enlist support of a candidacy.

If Congress has the power which appellant seeks to 
attribute to it here, it has the power to abolish all primary 
elections for Senators and Representatives in every State 
in the Union. It has the power to establish conventions, 
to overthrow conventions, to provide any sort of a primary 
that it may desire to provide.

If it has such power then the fears of the people who 
were opposed to the article that Congress might contrive 
the manner of holding elections so as to exclude all but 
their own favorites from office would seem to be justified. 
(See Storey on the Constitution, Secs. 815-828.)



48

The fears of the people who opposed that Article were 
allayed by the assurance of Hamilton that the authority 
of the National Government would be limited, and that 
they, the citizens, would retain their political freedom, 
the surrender of which was never intended by the people. 
That which is not within the enumerated powers of the 
national government cannot be brought within the power 
of regulation merely because of the existence of opinion 
that it would be advisable that Congress should exercise 
the power (see Hammer v. Dagerihart, 247 U. S. 251).

The people were jealous on all matters affecting their 
political liberty at the time of the adoption of the Con­
stitution, and on that subject were most careful with 
respect of any grant of power, and to construe Sec. 4 of 
Art. I, as though it would embrace a nominating system 
would be, we think, an unreasonable construction.

As far as our research has gone there is not a word in 
the Constitution or elsewhere, which could justify the 
conclusion that the term “elections” in Sec. 4 of Art. I, 
embraces any nominating system.

GENERAL REPLY TO APPELLANTS’ CONTENTIONS 
MADE IN STATEMENT OF JURISDICTION BRIEF.

In the brief filed in this Court, the government con­
cedes the holding in the Newberry case just mentioned, 
but comments that only a minority of the Court concurred 
in the chief opinion which held that the federal govern­
ment had no right to regulate primary elections, which



49

statement, of course, is erroneous. It points out that the 
statute at issue in that case was enacted prior to the 
17th Amendment, but also admits that Sections 51 and 
52 were also enacted prior to the 17th Amendment and 
tries to differentiate by stating that in the Newberry 
case the general validity of the statute was at issue, 
whereas in this case the validity of the present applica­
tion of Sections 51 and 52 are at issue.

We fail to see any distinction here at all. It is ele­
mentary that the unconstitutional application of a statute 
is just as much subject to attack as is a statute which is 
unconstitutional in general.

The government’s principal argument is as follows:

“The questions presented in the instant case are, 
we believe, of paramount public importance. The 
relationship between a primary election and the en­
suing general election is so intimate that the outcome 
of the former is often determinative of the latter. 
This is particularly so in those sections of the country 
where nomination is tantamount to election and the 
election becomes merely perfunctory. Hence, a voter 
may be as effectually deprived of his right or privi­
lege of participating in the final selection of Senators 
and Representatives where acts such as those charged 
in the indictment were committed at a primary as 
where they took place at the general election.”

Appellant is in error when it states in its brief that the 
Court emphasized that the statute involved in the New­
berry case was passed before the 17th Amendment. Four 
of the Justices held that Congress had no power to regu­
late senatorial primaries before the 17th Amendment,



50

and acquired none after its adoption. Justice McKenna 
held that the regulations of senatorial primaries exceeded 
the power of Congress as it stood in 1911, but reserved the 
question as to whether it would have been constitutional 
if enacted after the ratification of the 17th Amendment.

The 17th Amendment reads as follows:

“The Senate of the United States shall be composed 
of two Senators from each State, elected by the people 
thereof, for six years; and each Senator shall have one 
vote. The electors in each State shall have the quali­
fications requisite for electors of the most numerous 
branch of the State Legislatures.

“When vacancies happen in the representation of 
any State in the Senate, the executive authority of 
such State shall issue writs of election to fill such 
vacancies; Provided, That the Legislature of any State 
may empower the Executive thereof to make tem­
porary appointments until the people fill the vacan­
cies by election as the Legislature may direct.

“This amendment shall not be so constructed as to 
affect the election or term of any Senator chosen 
before it becomes valid as part of the Constitution.”

It must be noted that the aforesaid Amendment deals 
entirely with the election of Senators by Direct Vote. No 
Senator was up for nomination in the case at bar, there­
fore, that Amendment has no bearing on this case. In 
the Newberry case, Truman H. Newberry, the appellant, 
was a candidate for the Senate—hence, Justice McKenna’s 
reservation of the question under the 17th Amendment. 
If Newberry had been a candidate for the House of Repre­
sentatives as is the situation in our case, Justice Me-



51

Kenna would have had no ground to reserve the question 
under the 17th Amendment as that Amendment does not 
apply to elections of members of the House of Repre­
sentatives, which latter is governed exclusively by Sec. 4 
of Art. I.

Appellant’s argument that in some sections of the coun­
try nomination is tantamount to election, completely over­
looks the fact that the Constitution and laws of the United 
States do not reach or protect the operations of the affairs 
of a party primary. That argument is identical with the 
one made in Grovey v. Townsend, 295 U. S. 45, the last 
of the series of celebrated Texas cases just mentioned, 
and this court disposed of that contention in this language:

“The complaint states that candidates for the offices 
of Senator and Representative in Congress were to 
be nominated at the Primary election of July 9, 1934, 
and that in Texas nomination by the Democratic 
Party, is equivalent to election. These facts (the truth 
of which the demurrer assumes) the petitioner in­
sists, without more, make out a forbidden discrimina­
tion. A similar situation may exist in other states 
where one or another party includes a great majority 
of the qualified electors. The argument is that as a 
negro may not be denied a ‘ballot at a general elec­
tion on account of his race or color, if exclusion from 
the primary renders his vote at the general election 
insignificant and useless, the result is to deny him 
the suffrage altogether.’ So to say is to confuse the 
privilege of membership in a party with the right to 
vote for one who is to hold a public office. With the 
former the state need have no concern, with the latter 
it is bound to concern itself, for the general election 
is a function of the state government and discrimina­



52

tion by the state as respects participation by negroes 
on account of their race or color is prohibited by the 
Federal Constitution.” (Italics supplied.)

CONCLUSION.

Of particular interest as background on this subject 
matter, are the cases of U. S. v. Gradwell and U. S. v. 
Bathgate,37 in which are outlined the constitutional and 
legal history of federal laws relating to elections. Those 
cases announce the principle that criminal statutes must 
be strictly construed; that it is the policy of Congress 
to leave the conduct of elections to States; and that this 
policy should not be defeated by stretching old statutes 
to new uses to which they are not adapted, and for which 
they were not intended.

We respectfully submit that the judgment of the Dis­
trict Court should be affirmed.

WARREN O. COLEMAN,
1329 Whitney Building,

New Orleans, Louisiana, 
CHARLES W. KEHL, 
FERNANDO J. CUQUET, JR., 

Carondelet Building,
New Orleans, Louisiana, 

Attorneys for Defendants 
and Appellees.

37 u. S. v. Gradwell, 243 U. S. 476; U. S. v. Bathgate, 246 U. S. 218.



53

APPENDIX.

Thus, in State ex rel. Nordin v. Erickson, 119 Minn. 152, 
156, in passing upon the constitutionality of a primary law 
the Court said:

“In considering this question we must keep in mind 
that our primary election, which is purely of statu­
tory origin, is the selection, by qualified voters, of 
candidates for the respective offices to be filled, while 
an election, which has its original in the Constitution, 
is the selection, by such voters, of officers to discharge 
the duties of the respective offices.”

The Supreme Court of Missouri, in referring to the use 
of the word “election” in the Constitution of that State, 
said:

“That the framers of the Constitution referred to 
the election of individuals to public office and not to 
mere nomination to office when they inserted Section 
3 of Article 8 in the Constitution, we have no doubt 
whatever. As said by the St. Louis Court of Appeals 
in Dooley v. Jackson, 104 Mo. App. 1. c. 30, ‘The word 
“election” frequently occurs in the Constitution of 
the State. First in Section 9, Article 2, and Article 8 
of that instrument is wholly devoted to the subject 
of elections. But wherever used in the Constitution, 
it is used in the sense of choosing a person or persons 
for office by vote, and nowhere in the sense of nomi­
nating a candidate for office by a political party.’ ” 
(The State ex rel. Von Stade v. Taylor, 220 Mo. 618, 
631.)

In State ex rel. Zent v. Nichols, 50 Wash. 508, 522, it was 
said:

“It is contended that this section adds a require­
ment to the qualifications of electors in addition to



54

the constitutional requirements, and for that reason 
renders the entire act void. Were the primary elec­
tion so far such an essential part of the general elec­
tion as to make the constitutional provision relating 
to the qualification of electors entitled to vote at the 
general election applicable thereto, then there would 
be force in this objection; but we do not think the 
sections of the Constitution providing the qualifica­
tions of electors applicable to the primary election 
provided for by this statute. It is not the purpose of 
the primary election law to elect officers. The pur­
pose is to select candidates for office to be voted for 
at the general election. Being so, the qualifications 
of electors provided by the Constitution for the 
general election can have no application thereto.”

In Ledgerwood v. Pitts, 122 Tenn. 570, in passing upon 
the constitutionality of the primary election law of Ten­
nessee, the Supreme Court of that State said (p. 587):

“The first inquiry, therefore, presented for our 
examination is whether or not these provisions of the 
Constitution have any application at all to primary 
elections. Admittedly no such thing could have been 
in contemplation by the framers of the constitution 
when they came to formulate the election and suf­
frage clauses of that instrument, for at that time no 
such thing as a primary election had ever been sug­
gested. The object of this modern invention of politi­
cal parties is primarily for the purpose of permitting 
and requiring the entire electorate of that party to 
participate in the nomination of candidates for politi­
cal office. The plan is simply a substitution for the 
caucus or convention. It is true, as stated, it is a 
part of the political machinery that starts the candi­
date on his way and the political party is thereby 
enabled to crystallize and concentrate its vote on



55

that particular candidate who is chosen as the repre­
sentative and expositor possibly of their political 
views, but the limitations and safeguards of the con­
stitution apply exclusively to the final election when 
the officer is chosen in the mode required by the con­
stitution.”

In State v. Woodruff, 68 New Jersey Law, 89, 94, the 
Court said:

“But the election at which the fraud is committed, 
to constitute the common law offense, must be a 
popular election, the fraud going to the destruction 
of the right of the elective franchise in the selection 
of public officers for public positions. Such a thing 
as a primary was not known at the common law. It 
is the outgrowth of modern convenience or necessity. 
A primary is not an election in the sense of the com­
mon law; it is merely a method for the selection of 
persons to be balloted for at such an election.”

In construing the Act of 1839 in relation to the laying 
of wagers on the event of “any election” , the Supreme 
Court of Pennsylvania said:

“Instead of an election by all the electors of a 
municipality for public officers, it (the primary elec­
tion) is an election by the members of a party for its 
candidates. These candidates may afterwards be 
voted for by some of the electors when all electors 
are entitled to vote. Men may be candidates who 
were not voted for, or who were defeated, at the 
primary election. An election by a party for its 
candidates widely differs in its object from an elec­
tion by the electors for officers. Such primary elec­
tion is as plainly without the purview of the Act of 
1839 as is the election of officers for a private cor­
poration.” Commonwealth v. Wells, 110 Pa. 463, 468.



56
In People v. Cavanaugh, 112 Cal. 674, 676, 677, in con­

struing the “Purity of Elections Act” , the Court said:

“The word ‘election’, as here used in subdivision 3, 
and the other subdivisions of section 19, does not refer 
to primary elections. The purity of elections law is 
entitled: ‘An act to promote the purity of elections is 
regulating the conduct thereof, and to support the 
privilege of free suffrage by prohibiting certain acts 
and practices in relation thereto and providing for the 
punishment thereof’. In the body of this act may be 
found the word ‘election’ a hundred times or more, 
and it may be said in every instance that it is plainly 
apparent that the word is not used as applying to 
primary elections.”

See, also,

State v. Simmons, 117 Ark. 159.
George v. State, 18 Ga. App. 753.
Riter v. Douglass, 32 Nev. 400, 433.
Gray v. Seitz, 162 Ind. 1.
Kelsow v. Cook, 184 Ind. 173.
Montgomery v. Chelf, 118 Ky. 766.
Hodge v. Bryan, 149 Ky. 110.
Hager v. Robinson, 154 Ky. 489.
Wilson v. Dean, 177 Ky. 97.
Len v. Montgomery, 31 N. D. 1.
Babbitt v. State, 174 Pac. (Wyoming) 188.

There is some conflict in the State cases with respect 
to the question whether the term “any election” can be 
deemed to include what has been called a “primary elec­
tion” . But, where the term “election” is held to include 
a so-called primary election, it is plainly because of the 
manner which the latter expression has been used in the



57
terminology of the State legislation. And the weight of 
authority is that even where the State statute has used 
the expression “primary election” , a reference merely 
to an “election” is not sufficient to bring primary elec­
tions within the provision.

But when the State constitution or statute refers to an 
“election” in the sense of an election of public officers, 
it is not construed to include a so-called primary election, 
which is not an election of public officers but merely a 
selection of candidates.









IN THE
/

Supreme Court of the United States
October Term, 1940.

N o . 6 1 8

THE UNITED STATES OF AMERICA,

Appellant,
versus

PATRICK B. CLASSIC, JOHN A. MORRIS, BERNARD 
W. YEAGER, JR., WILLIAM SCHUMACHER, AND 
J. J. FLEDDERMANN,

Appellees.

Appeal from the District Court of the United States for 
the Eastern District of Louisiana.

SUPPLEMENTAL BRIEF OF DEFENDANTS AND 
APPELLEES IN REPLY TO BRIEF OF 

APPELLANT.

WARREN O. COLEMAN,
1329 Whitney Building,

New Orleans, Louisiana, 
CHARLES W. KEHL, 
FERNANDO J. CUQUET, JR., 

Carondelet Building,
New Orleans, Louisiana, 

Attorneys for Defendants 
and Appellees.





INDEX.

Page
Congress Drives Power to Regulate Elections from Sec. 4 of Art.I; Not Sec. 2 of Art. I of Constitution ..............  1Defendants were not Officers or Employees of State........  5Is Primary Such Part of Election Machinery of State that wouldConstitute Commissioners Officers or Employees of State?.... 6
Michel Case Discussed .............................  6Person Defeated in Primary can be Elected by Voters in GeneralElection ....................    9Can Provisions of 14th Amend, be Invoked in Brief Where itForms no Part of Record .................. --...  12Indictment Fails to Charge Violation of 14th Amendment..-.... 13Defendants Entitled to be Informed of Nature and Cause ofAccusation .....................      14Sec. 20 C. C. was Enacted to Enforce the Elective Franchise, and not the 14th Amend, and does not Embrace Rights Protectedby the 14th Amendment .........................  16Criminal Statutes are Strictly Construed; Intent of Congress inPassing Sec. 20 C. C............................  17
Congress Passes Specific Acts to Punish Certain Violations ofRights Protected by 14th Amendment ...... .......... 18Fifth and Sixth Amendments Require Ascertainable Standard tobe Fixed by Congress rather than by Courts and Juries..  20Cases Cited by Appellant Discussed ..................... 2214th Amendment Embraces All Civil Rights that Men have;

Those that Congress Desired to Punish Criminally wouldhave to be set forth in Code of Laws ...............  23Conclusion ..................      27'Appendix ....................................... 28

CITATIONS.

Bonnelley v. United States, 276 U. S. 505...............................................  17
Chicago, Burlington & Quincy R. R. v. City o f Chicago, 166 U. S.
_. .226 ................................................................................................................. 22
Civil Rights Cases, 109 U. S. 3..................... .............................................19,25
Ex parte Clark, 100 U. S. 399 .................. ...............................  3
Ex parte Comm, of Va., 100 U. S. 313, 317............................. 19
Ex parte Siebold, 100 U. S. 371 ................................................................ 3
Ex parte Virginia, 100 U. S. 339 .......................................... 19,22
Ex parte Yarbrough, 110 U. S. 651 ...............................  2, 3
tasulo v. United States, 272 U. S. 620 ......................  17
Erovey v. Townsend, 295 U. S. 45 ............................................................  7, 22
lowa-Des Moines Bk. v. Bennett, 284 U. S. 239 ........................  20, 22
Eacombe v. Laborde, 132 La. 435 .............................  10 12
Missouri ex rel. Gaines v. Canada, 305 U. S. 337................  22
Mosher v. City of Phoenix, 287 U. S. 29 ................................. 22
dewberry v. United States, 256 U. S. 232 ........................  4,13
«ixon v. Condon, 286 U. S. 73 7
Eixon v. Herndon, 273 U. S. 536   7
£ayne v. Gentry, 149 La. 707 .........................    10

T-r^e /•  Michel, 121 La. 374 ................................................ ........ 5
united States vs. Chase, 135 U. S. 255 ....... 17



CITATIONS— (Continued)'
Page

United States v. Cohen Gro. Co., 255 U. S. 81 ............United States v. Cruikshank, 92 U. S. 542, 557 ... ........
United States v. Eaton, 144 U. S. 677 ..................United States v. Gradwell, 243 U. S. 476 ................ 2,United States v. Lacher, 134 U. S. 624 ..................United States v. Mosely, 230 U. S. 383 ........... -......United States v. Resnick, et als., 299 U. S. 207 ............United States v. Wiltberger, 5 Wheat. 76, 95 ........ -....

MISCELLANEOUS.

Bannon “The Fourteenth Amendment”, pp. 459, 461, 462 .....
Congressional Record, Vol. 46, p. 848 ...................Georgia Law Journal 6, 314, 322 (1928) ..................
La. Act 46 of 1940, Sec. 10 ...................... ...La. Act 46 of 1940. Sec. 61 ..........------............La. Act 160 of 1932, Sec. 1 ... -......................
La. Act 80 of 1934 ................................La. Act. 46 of 1940, Sec. 87 .........................La. Constitution, Art. 8, Sec. 15, as amended by Act 80 of 1934....11,
La. Gen. Stat. Ann. (Dart, 1939) Secs. 2675 and 2678........
United States Revised Statutes, Sec. 5519 ................United States Constitution, Amend. 6 ............. ......United States Constitution, Amend. 14, Sec. 5 .............

20
15
17
16
17
2

17
17

24
4
5
6

28
9

10
11
29
28
19
14
18



IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1940.

No. 618.

THE UNITED STATES OF AMERICA,
Appellant,

versus

PATRICK B. CLASSIC, JOHN A. MORRIS, BERNARD 
W. YEAGER, JR., WILLIAM SCHUMACHER, AND 
J. J. FLEDDERMANN,

Appellees.

Appeal from the District Court of the United States for 
the Eastern District of Louisiana.

SUPPLEMENTAL BRIEF OF DEFENDANTS AND 
APPELLEES IN REPLY TO BRIEF OF 

APPELLANT.

CONGRESS DERIVES POWER TO REGULATE ELEC­
TIONS FROM SEC. 4 OF ART. I, NOT SEC. 2 OF 
ART. I OF CONSTITUTION OF THE UNITED 
STATES.

Throughout appellant’s brief, mention is made of Sec. 2 
of Art. I of the Constitution, as the source of the power 
of Congress to enact Sections 19 and 20 of the Criminal 
Code.



2

Undoubtedly Congress obtains its power to legislate in 
connection with Congressional elections from Section 4 
of Article I. This was originally held by this Court in 
Ex parte Yarbrough1 and when the question was next 
raised1 2 the Yarbrough case was cited with approval. 
Thereafter all of the cases on this subject are based on 
the assumption that the source of Congressional power to 
regulate Congressional elections is derived from Section 
4 of Article I, and not on Section 2 of Article I.

It is clear that the choosing of the members of the House 
of Representatives has reference to the manner of making 
that choice, as stated in Article I, Section 4 which refers 
to holding elections. It is likewise clear that the “electors” 
spoken of in Section 2 of Article I, are the persons who 
vote at the “elections” , spoken of in Section 4 of Article I.

Apparently appellant seems to rely as little as possible 
on Section 4 of Article I, thus avoiding the argument that 
will be raised as to the meaning of the word “elections”, 
as used in that section, and as understood at the time of 
the adoption of the Constitution. Appellant seeks to make 
a distinction between the word “election” , as stated in 
that Section, as against the word “ chosen” , as spoken 
of in Section 2, but it is clear that whatever power Con­
gress has to pass laws concerning Congressional elections

1 Ex parte Yarbrough, 110 U. S. 651, the Court said, “So also, has theCongress been slow to exercise the powers expressly conferred 
upon it in relation to elections by the 4th Sec. of the 1st Art. of the Constitution.“It was not until 1842 that Congress took any action under the powers here conferred,” etc.U. S. v. Gradwell, 243 U. S. 476, the Court said, “The power of Congress to deal with the election of Senators and Representa­tives is derived from Sec. 4 of Art. 1 of the Constitution of the United States.2 U. S. v. Mosely, 230 U. S. 383.



3

is derived from Section 4 of Article I, not from Section 2 
of Article I. We have discussed in our original brief the 
history of this enactment, showing that it was a limited 
power given Congress and not a general one.

There is no clearly defined authority for assuming that 
Congress has a general power of legislation concerning 
federal elections. The power to regulate the election of 
senators and representatives comes wholly and entirely 
from Article I, Section 4 of the United States Constitu­
tion.3

In the Yarbrough case, in which the specific question 
was the right of Congress to punish criminally a con­
spiracy to intimidate a citizen in the exercise of his right 
to vote under #5508 R. S., the court reviews the regula­
tory statutes previously enacted by Congress for the 

• control of elections and definitely grounds them upon the 
express authority of Art. I, Sec. 4.

When the 17th Amendment, providing for the popular 
election of senators, was first reported on January 11, 
1911 by Senator Borah of the Senate Judiciary Committee, 
it contained a clause providing that it should be in lieu of 
Sec. 4 of Art. I insofar as it related to any authority in 
Congress to make or alter regulations as to the time or 
manner of holding elections for senators. But this clause 
was omitted and all reference to Sec. 4 of Art. I was 
eliminated from the resolution. “As finally submitted 
and adopted the amendment,” says the Supreme Court in

EXrarftev ieJoM’ 100 U' S‘ 371; Bx Parte Clark, 100 U. S. 399; Ex Parte Yarbrough, 110 U. S. 651.



4

Newberry v. U. S .4 “does not undertake to modify Article 
I, Sec. 4, the source of congressional power to regulate 
the times, places and manner of holding elections.” That 
section remains intact and applicable to the election of 
senators and representatives.5

There is another provision of the Constitution which 
may be here noted, namely Article I, Sec. 5, which makes 
each house the judge of election of its members which 
could be considered along with Article I, Sec. 2, para. 1 
which says that the House of Representatives shall be 
composed of members chosen by the people of the several 
states. These clauses cannot be construed to give either 
House of Congress any additional affirmative authority 
to control or regulate the elections in the state. Congress, 
having been empowered to make regulations only as to 
the times, places and manner of holding elections for 
senators and representatives, cannot go beyond these 
limitations. This conclusion reasonably follows, other­
wise it would have been meaningless for the Supreme 
Court to have so seriously weighed the limits and scopes 
of Section 4 of Article I, if by the mere application of 
Sections 5 and 2 it could have held that Congress possessed 
an additional indefinite, perhaps, limitless authority. It 
cannot be that the framers of the Constitution, after 
pointedly fixing the federal authority over elections in 
Article I, Section 4 intended to give by indirection a 
blanket authority under Sections 5 and 2. The words of

4 Newberry v. U. S., 256 U. S. 232: “We find no support in reason orauthority for the argument that because the officers where created 
by the Constitution, Congress has some indefinite, undefined power over elections for senators and representatives not derived from Section 4, Art. I.”

5 Congressional Record, Vol. 46, Page 846.



5

these latter sections do not lend themselves reasonably 
to such interpretations and in no opinion has the Supreme 
Court suggested such a conclusion.6

Insofar as Article I, Section 2 is concerned, the word 
“chosen” , used there, is defined in Article I, Section 4, 
which infers that the method of choosing shall be by 
election.

DEFENDANTS WERE NOT OFFICERS OR EMPLOYEES
OF STATE.

Appellant’s brief is based entirely on the premise that 
commissioners of election, under Louisiana Act 46 of 1940, 
are state officers. This premise is assumed. The only 
real argument made to justify this assumption is that the 

‘method of their selection is prescribed by statute, and 
their compensation is provided by the local units of the 
state government. Appellant also cites the old case7 
which contains a statement that the primary is part of 
the election machinery of the State.

It is argued that because the State has regulated the 
activities of the political party and the primary, and has 
provided for a fair method of selecting the political party’s 
officers and employees, that such officers and employees 
thereby become state officers. We do not believe that 
such contention is sound in reason or authority. This is 
particularly true where the State leaves the entire ad­

eSee 6 Geo. L. J. 314, 322 (1928).
‘ Mate v. Michel, 121 La. 374.



6

ministration of the functions of the nominating primary 
to the political party and its officers and employees.8

Appellant has quoted elaborately from Louisiana Act 46 
of 1940 but has overlooked the most important section 
having a bearing on the issues involved here, which is 
Section 10.9

There is nothing in Louisiana’s Act which would justify 
the conclusion that the defendants here were merely act­
ing as the agent of the State, as was the case in Nixon v. 
Condon, 286 U. S. 73. The commissioners here were mere­
ly performing administrative duties on behalf of a political 
party.

IS PRIMARY SUCH PART OF ELECTION MACHINERY 
OF STATE THAT WOULD CONSTITUTE COMMIS­
SIONERS OFFICERS OR EMPLOYEES OF STATE? 
MICHEL CASE DISCUSSED.

The Michel case, relied upon by appellant, was decided 
in 1908 during the early history of the operation of the 
primary law in this State. It was an attack upon many 
features of the Act, as it existed at that time.

One of the points raised was that the State had no right 
to appropriate any of its funds to defray the expenses of

8 For further argument on this point see Appellee’s Or. Br., p. 22.
9 Section 10. “ The members of the State Central Committee, shall be

elected at the first primary election held in the State in January, 
1944, for  the nomination of State and parish officers, and every 
four years thereafter. They shall serve without compensation, 
shall be elected for a period of four years, and shall serve until 
their successors are elected. They shall never be considered as 
officers or employees o f the State of Louisiana, or any of its sub­
divisions.”  (Emphasis supplied.)



7

the primary, but the Court in holding that it did have 
such a right, merely stated that the money appropriated 
was for a public purpose, as the primary was a part of 
the election machinery of the State. We understand that 
to mean that under the primary system the political party 
would have the right to have the name of the candidate 
nominated by it printed on the State ballot; that the State 
would recognize the party selected by the political party 
in printing its ballot; and to that limited extent it was 
part of the election machinery of the State. This is true 
in the Texas cases and all other cases which have come 
before this Court.10 But, we do not understand that de­
cision to abolish the general concept of the primary or 
the political party, for on Page 391 of that decision the 
Court definitely showed that it recognized the distinction 
which we are arguing here by using the following lan­
guage:

“It is of the very essence of a primary that none 
should have the right to participate in it but those 
who are in sympathy with the ideas of the political 
party by which it is being held. Otherwise the party 
holding the primary would be at the mercy of its 
enemies, who could participate for the sole purpose 
of its destruction, by capturing its machinery or foist­
ing upon it obnoxious candidates or doctrines. It 
stands to reason that none but Democrats should 
have the right to participate in a Democratic primary 
and none but Republicans in a Republican primary. 
A primary is nothing hut a means' of expressing party 
preference, and it would cease to be that if by the 
admission of outsiders its result might be the very 
reverse of the party preference. If, therefore, there

10 Grovey v. Townsend, 295 U. S. 45; Nixon v. Condon, 286 U S 73- 
Nixon v. Herndon, 273 U. S. 536. ' '



8

could not be a primary under our Constitution with­
out the admission of outsiders, the consequence would 
be that under our Constitution such a thing as a 
primary would be impossible. The argument, there­
fore, that in a statute-regulated, or compulsory, pri­
mary the qualifications of voters cannot be other 
than as fixed by the Constitution for the general 
election, would lead to the conclusion that such a 
primary was a legal impossibility.” (Italics supplied.)

and again on Page 393, the Court said further:

“ It is not true that it is by delegation from the 
Legislature that the state central committees hold the 
power of fixing the political qualifications of the 
voters at the primary. They hold said power virtute 
officii, as being the governing bodies of the political 
parties. The Legislature has simply abstained from 
interference, leaving the power where it originally 
resided and naturally belongs. And in so doing it 
has but obeyed the constitutional injunction to pass 
laws to secure the fairness of primaries. A  primary 
wherein the governing body of the political body 
holding it could not determine the political qualifica­
tion of those who are to have the right to participate 
in it would not only not be fair, but would be a legal 
monstrosity.

“In conclusion, and as a general commentary upon 
this statute, we will say that it has been adopted in 
the exercise of the police power of the state, and that 
the reader of it cannot but be impressed that its aim 
has not been to create conditions, or to confer rights 
or bestow benefits, or to take away rights, but simply 
to act upon and regulate existing conditions, with a 
view single to the public interest; that in nearly every 
state of the Union such a law has been adopted, and 
the assaults upon it have been repulsed everywhere,



9

except in California alone; and that, finally, as ex­
pressed by Judge Parker (People v. Dem. Cen. Com., 
supra), the idea of such a law is ‘to permit the voters 
to construct the organization from the bottom up­
wards, instead of from the top downwards,’ and it 
would be strange indeed if the Constitution had made 
such a scheme impossible.” (Italics supplied.)

If any other interpretation can be placed upon the hold­
ing in that case, we say that such is no longer the law of 
the State. The primary law, as well as the Constitution 
of the State has been changed many times since that case 
was decided. At present, Act 46 of 1940 clearly shows 
that the Legislature has recognized the independence of 
the political parties as being free from interference by any 
officer or employee of the State, and also specifically 
states that the members of the governing body should 
not be considered as officers or employees of the State 
or its subdivisions, and the courts, although not con­
trolled, will always give great deference to the expres­
sions of policy by the Legislature.

PERSON DEFEATED IN PRIMARY CAN BE ELECTED 
BY VOTERS IN GENERAL ELECTION.

Appellant argues that certain sections of the laws of 
Louisiana prevent a “write in” vote for a candidate de­
feated at a primary.11

This is incorrect. Appellant has fallen into this error 
because it relies on Act 160 of 1932, Sec. 1, which is no

11 (Appellant’s Br., pp. 19-22.)



10

longer in effect, but has been superseded by an amend­
ment to the Constitution of the State found in Act 80 of 
1934.

All of the Louisiana cases uniformly hold12 that the 
voter cannot be deprived of his freedom of expressing 
his will at a general election by a restriction placed on 
the candidate by the Legislature, and that any prohibi­
tion against a candidate who was defeated at a primary, 
does not prevent his election at a general election, nor 
does it prevent the voter from voting for him at such 
election. The Constitution of the State protects the voters’ 
rights in this respect.

It is argued that the later provision in Act 160 of 193213 
was a method devised by the Legislature to prevent the 
voters from exercising their constitutional right to elect 
a defeated party candidate by writing his name in on 
the ballot at the general election.

That was not the reason for the enactment. It was 
passed to prevent a situation, such as recently occurred, 
wherein a candidate died the day before the general elec­
tion, and a person attempted to claim the election by hav­
ing a number of his friends write in his name at the last 
minute. It was to give interested parties notice that a 
contest was to be expected. It was also passed to avoid 
the necessity of a general election and the expense en­
tailed when in fact the nominee of the party had no 
opposition.

iSLacombe v. Laborde, 132 La. 435; Seal v, Knight, 10 La. Ap. 563;
Payne v. Gentry, 149 La. 707.

13 No longer in effect.



11

In Sec. 15 of Art. VIII, as amended by Act 80 of 1934,1Sa 
no provision is made in the fundamental law which would 
deprive the voters of electing a person who was defeated 
at a primary by writing in his name.

On the contrary, that enactment specifically guarantees 
to the voters the privilege of writing in the names of the 
candidates on the ballot, and the construction placed upon 
Sec. 87 of Act 46 of 1940 by the appellant as depriving 
the voters of this right would render that section of the 
act unconstitutional.

The aforesaid constitutional article, as amended, clearly 
so implies. It provides, at least by implication, that a 
candidate defeated in a primary can be voted for under 
the condition that he file a statement with the proper 
authority 10 days before the general election that he is 

•willing and consents to be voted on for that office.

That is a constitutional amendment, voted upon by the 
people of the State, and there is nothing in it to justify 
the conclusion that the people have deprived themselves 
of the right they always enjoyed to vote for any person 
who was willing to be voted for, by writing his name on 
the ballot. If the framers of that constitutional amend­
ment intended to deprive the voters of their long recog­
nized right to vote for any candidate who desired their 
vote, that amendment would have so stated in clear and 
unmistakable language. If it had so provided, the people 
would no doubt have defeated it. Any restrictions found 
in the law is against the candidate, and not the voter,

13a See Appendix, p. 28.



12

as there is no law in Louisiana which says that a defeated 
candidate at a primary cannot file a statement signify­
ing his willingness for the voters to vote for him. Such 
a construction on that act would be in accordance with 
the policy of the Courts to allow complete freedom to 
the voters to select the candidate of their choice, and will 
so remain until the people decide to change the Constitu­
tion of the State of Louisiana.

The highest Court of Louisiana has spoken on that sub­
ject,1315 and its finding is entitled to great weight in decid­
ing the policy of the law of the State, as follows:

“The inhibition placed upon the candidacy at the 
general election of one who has been defeated in a 
primary, however does not prevent the voter from 
voting for the candidate defeated in the primary. 
The law allows to the voter the right to vote for 
whom he chooses, and this right cannot be denied 
him merely because the one for whom he votes is 
prohibited from being an avowed or official candi­
date. The intent of the law is to allow the voters the 
greatest freedom in the expression of his will, and 
this freedom is not to be interfered with by the Court, 
in the absence of a clear and unambiguous expression 
by the lawmaking power of an intent to limit, or re­
strict within certain bounds, the exercise by the 
voter of this freedom of choice.”

CAN PROVISIONS OF FOURTEENTH AMENDMENT 
BE INVOKED IN BRIEF WHERE IT FORMS NO 
PART OF RECORD?

For the first time in the proceedings in this case, ap­
pellant invokes the provisions of the 14th Amendment;

13b Lacombe v. Laborde, 132 La. 435.



13

and argues that voters in the primary election were denied 
the equal protection of the laws by state officers who 
refuse to count their votes as cast, and counted them in 
favor of an opposing candidate in violation of the equal 
protection clause of the 14th Amendment.

This point was never presented to nor passed upon, nor 
argued in the District Court, (see opinion R. 18-22'); 
it was not specifically raised in the assignment of 
errors filed in this Court (R. 24); the statement of juris­
diction filed in this Court in compliance with Rule 12, as 
amended, relied exclusively on the incorrectness of the 
Newberry case.14 No issue in connection with the 14th 
Amendment is stated in the jurisdictional statement. It 
therefore, appears that this question is not properly before 
this Court.

INDICTMENT FAILS TO CHARGE VIOLATION OF 
FOURTEENTH AMENDMENT.

Besides, as we read the indictment, it appears that Count 
2 would be insufficient to charge defendants with depriv­
ing any citizen of the equal protection of the laws under 
the 14th Amendment. The indictment is drawn exclusive­
ly to cover such protection as would be afforded under 
Section 4 of Article I, of the Constitution. It charges that 
defendants wilfully subjected registered voters to the de­
privation of rights, privileges and immunities secured by 
the Constitution and laws of the United States, and then

14 Newberry v. U. S., 256 U. S. 232.



14

it proceeds to particularize the rights, as follows: Their
right to cast their vote for the candidate of their choice, 
and to have their votes counted for such candidates, as 
cast. That allegation could only cover such rights as the 
voters had under Section 4 of Article 1, giving Congress 
the right to regulate elections. Nowhere in the indict­
ment is it charged by the Grand Jury that the defendants 
deprived any person of their rights to the equal protection 
of the laws.

DEFENDANTS ENTITLED TO BE INFORMED OF 
NATURE AND CAUSE OF ACCUSATION.

To permit the appellant to indict defendants for depriv­
ing voters of rights under the Constitution, to-wit: their 
right to cast their vote for the candidate of their choice 
and to have their votes counted for such candidates, as 
cast, (which would be a right which the courts have held 
is derived from Section 4 of Article I of the Constitution), 
and then for the first time to contend in an appellate 
court that such an indictment can be sustained on the 
theory that the deprivation was not what was alleged, but 
something different, that is to say, the deprivation of a 
right under the Constitution, to-wit, the equal protection 
of the law; would be to deprive these defendants of their 
rights under Amendment 6 to be informed of the nature 
and cause of the accusation.13 15

15 Amendment 6 o f the Constitution provides:
“ In all criminal prosecutions the accused shall * * * be informed 

o f the nature and cause o f the accusation.”



15
Appellant anticipating this objection, and realizing its 

force answers it.16

In the first place the District Court did not err on this 
point at all for the point was not even mentioned in that 
Court.

In the second place, this Court has uniformly held that 
it is not sufficient to plead the offense in the language 
of the statute. The necessity is emphasized here when 
the language of the statute under which the offense is 
charged is so sweeping that it is capable of embracing in­
numerable rights, privileges, immunities and acts.

On this subject we believe we need only refer the Court 
to its holding in the celebrated C'ruihshank case 17 which 
has been consistently followed as the law on this point, 
particularly to that part wherein this Court said,

“These counts in the indictment charge, in sub­
stance, that the intent in this case was to hinder and 
prevent these citizens in the free exercise and enjoy­
ment of ‘every, all and singular’ the rights granted 
them by the Constitution, etc. The language is broad 
enough to cover all.”

“In criminal cases, prosecuted under the laws of 
the United States, the accused has the constitutional 
right ‘to be informed of the nature and cause of the 
accusation’. Amend. VI. In U. S. v. Mills, 7 Pet. 142, 
this was construed to mean, that the indictment must

16 Br., p. 30 thus:
“ It is o f no consequence that the indictment does not count in 

terms upon the 14th Amendment and at the right of the voters 
to equal protection o f the laws. The charge is laid in the language 
of the statute and specifies as the right ‘ secured’ and ‘protected’ 
by the Constitution the right o f the voters whose ballots were 
altered to have their votes counted as cast. If, as we contend, 
the infringement o f that right by the alleged acts of the defend­
ants constitutes a denial o f equal protection, it seems clear that 
the District Court erred in holding that the right is not ‘ secured’ 

, 7TTand ‘protected’ by the Constitution of the United States.”
17 U. S. v. Cruikshank, 92 U. S. 542, 557.



16

set forth the offense ‘with clearness and all necessary 
certainty, to apprise the accused of the crime with 
which he stands charged:’ and in U. S. v. Cook, 17 
Wall. 174, that ‘every ingredient of which the offense 
is composed must be accurately and clearly alleged.’ 
It is an elementary principle of criminal pleading, 
that where the definition of the offense whether it 
be at common law or by statute, ‘includes generic 
terms, it is not sufficient that the indictment shall 
charge the offense in the same generic terms as in 
the definition: but it must state the species: it must 
descend to particulars’.”

SECTION 20 C. C. WAS ENACTED TO ENFORCE THE 
ELECTIVE FRANCHISE, AND NOT THE FOUR­
TEENTH AMENDMENT AND DOES NOT EM­
BRACE RIGHTS PROTECTED BY FOURTEENTH 
AMENDMENT.

Appellant bases its argument on the statement that 
Section 20 of the Criminal Code was originally enacted 
to enforce the 14th Amendment. The genesis of that 
Section is set forth in the Gradwell case.18

is U. S. v. Gradwell, 243 U. S. 476:
“ * * * in 1870 * * * a comprehensive system for  dealing with 

congressional elections was enacted. This system was comprised 
in Sec. 19-22 o f the Act app. 5/31/79 (16 Stat. at L., p. 144, c. 
114) in Sec. 5 and 6 o f the A ct app. 7/14/70 (16 Stat. at L., p. 
254, c. 254) and in the act supplementing these acts, app. 6/10/72 
(17 Stat. at L., pp. 347-349, c. 415.)”

“ These laws provided extensive regulations for  the conduct of 
congressional elections. * * *”

“ These laws were carried into the revision o f the United States 
statutes o f 1873-74, under the title, ‘Crimes Against the Elective 
Franchise and Civil Rights o f Citizens, R. S. Sec. 5506 to 5532 in­
clusive.’

“ It is a matter o f  general as o f legal history that Congress, 
after 24 years of experience, returned to its former attitude to­
ward such elections, and repealed all o f these laws. * * * (Act app. 
2/8 /94 (29 Stat. at L. p. 36 c. 25) Comp. Stat. 1913, Sec. 1015). 
This repealing act left in effect as apparently relating to the elec­
tive franchise, only the provisions contained in the 8 sections of 
Chapter 3 of the Criminal Code Sections 19 to 26, inclusive, which 
have not been added to or substantially modified during the 23 
years which have since eslapsed.”  (Emphasis supplied.)



17
It is therefore plain that Section 20 was not enacted for 

the purpose of enforcing the 14th Amendment, but was 
enacted to protect the elective franchise and particularly 
to enforce the 15th Amendment. Appellant contends that 
the point was settled sub-silentio in Guinn v. U. S.. 238 
U. S. 347, 368; if it was so settled, it is not apposite as the 
case involved the 15th Amendment.

CRIMINAL STATUTES ARE STRICTLY CONSTRUED: 
INTENT OF CONGRESS IN PASSING SEC. 20 
CRIMINAL CODE.

It is well settled that the only crimes against the United 
States are those which are statutory, and that statutes 
creating crimes do not extend to cases not covered by 
the words used. The Supreme Court of the United States 
has repeatedly laid down that doctrine.19

Congress never intended to include within the sweep­
ing terms of the language of Section 20, the myriad of 
rights that are protected generally under the broad clauses 
of the 14th Amendment. To place the construction on

19 “ There are no common law crimes against the United States.”— U 
S. v. Eaton, 144 U. S. 677.

“ Regards must ALW AYS be had to the familiar rule that one 
may not be punished for crime against the United States unless 
the facts shown PLAINLY AND UNM ISTAKABLY constitute an 
offense within the meaning of an Act of Congress.”— Bonnellev v. 
U. S., 276 U. S. 505; Fasulo v. U. S., 272 U. S. 620.

“ Statutes creating crimes are to be STRICTLY construed in 
favor of the accused; they may not be held to extend to cases not 
covered by the words used.”— U. S. v. Resnick, et als., 299 U. S. 
207; U. S. v. Wiltberger, 5 Wheat. 76, 95.
T>T<,?T^0re one may be Punished, it must appear that his case is 
PLAINLY within the statute; there are no CONSTRUCTIVE 
offenses.”— U. S. v. Lacher, 134 U. S. 624; U. S. v. Chase, 135 U. S.^DD.



18

Sec. 20 contended for here would convert the Federal 
Court into a veritable police Court, for the activities 
falling within the scope of the 14th Amendment are so 
varied that it is not conceivable that Congress intended 
to include within the general terms of Section 20, all of 
the rights within the 14th Amendment.

On the contrary, it intended to make only such specific 
acts that contravened the provisions of the 14th Amend­
ment a violation of the criminal laws of the United States 
that were specifically denounced in a congressional enact­
ment, the other acts being relegated to the protection of 
the civil courts. This has been so since the time of the 
enactment of the 14th Amendment.

CONGRESS PASSES SPECIFIC ACTS TO PUNISH 
CERTAIN VIOLATIONS OF RIGHTS PROTECTED 
BY 14TH AMENDMENT.

Section 5 of the 14th Amendment provides that:

“ The Congress shall have power to enforce, by ap­
propriate legislation the provisions of this Article.”

Many instances could be cited to show that Congress 
did not believe that Section 20 applied to all of the rights 
protected by the 14th Amendment, for whenever it de­
sired to punish acts violating the terms of the equal pro­
tection of the law clause, it passed special legislation de­
nouncing the particular activities which deprived the per­
son or class of persons of the equal protection of the laws.



19

There are many such laws.20

This Court recognized this fact in Ex parte Comm, of 
Va., 100 U. S. 313, 317, and stated,

“Congress, by virtue of the 5th Sec. of the 14th 
Amend, may enforce the prohibitions whenever they 
are disregarded by either the Legislative, the Execu­
tive or the Judicial Department of the State. The 
mode of enforcement is left to its dicretion.”  (Italics 
supplied.)

An examination of the various Congressional enactments 
discussed in the Civil Rights Cases, supra, will disclose 
that in each instance Congress deemed it necessary to pass 
specific enactments denouncing these specific activities 
under the equal protection of the laws clause that it wished 
to make criminal, and to fix the penalty commensurate 
with the nature of the activity. Sec. 20 provides a peni­
tentiary sentence, but only a fine is provided for the kind 
of activity under the statute passed upon in Ex parte Va.

20 Sec. 5519 read:
“ If two or more persons in any State or Territory conspire to 

go in disguise upon the highway or on the premises of another 
for the purpose of depriving, either directly or indirectly, any 
person or class of persons of the equal protection of the laws or 
of equal privileges or immunities under the laws; or for the pur­
pose of preventing or hindering the constituted authorities of any 
State or Territory from giving or securing to all persons within 
such State or Territory, the equal protection of the laws, each of 
such persons shall be punished, etc.”

See also the various enactments passed upon in the Civil Rights 
Cases, 109 U. S. 3.

See also the statute on which the prosecution in Ex parte 
Virginia was based, 100 U. S. 339, which sec. read:

“ That no citizen, possessing all other qualifications which are or 
may be prescribed by law, shall be disqualified for service as 
grand or petit jurors in any court of the United States, or o f any 
State, on account of race, color or previous condition of servitude; 
and any officer or other person charged with any duty in the 
selection or summoning of jurors who shall exclude or fail to 
summon any citizen for the cause aforesaid, shall on conviction 
thereof, be deemed guilty o f a misdemeanor.”



20

supra. This would not have been necessary if Section 20 
had the sweeping effect contended for here. It is true that 
those laws were declared unconstitutional, as being directed 
at the individual rather than the State, still Congress 
enacted them under the power that they deemed they had 
under the 14th Amendment.

5TH AND 6TH AMENDMENTS REQUIRE ASCERTAIN­
ABLE STANDARD TO BE FIXED BY CONGRESS, 
RATHER THAN COURTS AND JURIES.

Under the familiar principle of law that criminal statutes 
must be so specific that any person reading them would 
be able to tell whether or not a particular activity would 
violate a criminal law, it could not be possible that Con­
gress intended that Section 20 should be applied to the 
thousands of matters and things both grave and minor, 
embraced within the sweeping terms of the 14th Amend­
ment. Any such construction as contended for here would 
render Sec. 20 unconstitutional as being too indefinite,-'1 
and this Court will not give such a construction to a 
statute as to render it unconstitutional when another 
reasonable construction can be placed thereon.

To state a reductio ad absurdum let us take the very 
case cited by appellant, for example, the Iowa-Des Moines

i Congress, in attempting as it did in the Lever Act of 8/10/17, Sec- 
4 (40 Stat. 276) as renacted in the act of 10/22/19, 2 c. 80 (41 
Stat. 297) to punish criminally any person who wilfully 
‘Any unjust or unreasonable rate or charge in handling or dealing 
in or with any necessaries” , violated the 5th and 6th Amendments, 
which require an ascertainable standard o f guilt, fixed by Congress, 
rather than by Courts and juries, and secure to accused persons 
the right to be informed of the nature and cause of accusations 
against them. U. S. v. L. Cohen Gro. Co., 255 U. S. 81.



21

Bank v. Bennett case, 284 U. S. 239, where the tax col­
lector discriminated against a foreign corporation in favor 
of a domestic corporation in collecting taxes. If the dis­
crimination had been a few dollars, those tax collectors 
would have to go to jail for if appellant’s argument holds 
true here, then it should equally apply to that case.

Sec. 20 would likewise apply to such discriminations by 
State employees as resulted from the following activities 
to mention but a few; regulating railroad rates, all rela­
tions of employer and employee, all regulations relating 
to pursuit of occupations such as the practice of profes­
sions, etc., all cases arising under condemnation proceed­
ings, all of the various cases whereby the state discrimi­
nates in classifications such as taxation, all would be 
covered by Section 20, and in general, in all matters 
where the state or its officers or employees exercise the 
police power of the state in a manner which may be 
found ultimately to deprive citizens of the equal pro­
tection of the law in petty matters as well as in matters 
of great importance, and the innumerable matters that 
would arise under that heading, such as zoning regula­
tions, blue-sky regulations, regulations of bill-boards, regu­
lating sales of various merchandise, etc.

It is clear that whenever Congress intended any of 
such matters to be cognizable under the federal criminal 
laws, it has passed a definitive statute setting forth the 
particular activity under the due process of law clause 
which it intends to make criminal, pursuant to the au­
thority it has under Section 5 of the 14th Amendment.



2 2

CASES CITED BY APPELLANT DISCUSSED.

The cases cited by appellant (Br. p. 37) do not set forth 
any contrary doctrine than that argued here. The cases 
are all civil cases, with the exception of Ex parte Virginia 
and that case was based on a statute specifically de­
nouncing the act which deprived negroes of the equal 
protection of the laws when State Officers discriminated 
against them, and the case illustrates our point.

We do not contend, as was the case in Ex parte Va., 
that Congress lacks power to pass criminal statutes to 
enforce the equal protection of the law clause. We say 
that Congress has not done so, and did not so intend when 
it passed Sec. 20.

It will be noted that in all of the cases relied upon by 
appellant22 there is a direct and intimate connection with 
the acts resulting in the discriminating against the citizen 
and the state government, not a fictitious or theoretical 
one, but a real and systematic connection with the act of 
the official and the state.

In the Iowa-Des Moines Nat. Bk. case, the state insisted 
on retaining the discriminatory tax, and was sustained 
by the highest Court in the State; in the Missouri ex rel. 
Gaines case, the curators in refusing the negro admission 
to the State-operated law school were sustained by the 
highest Court of the State; in the Mosher case and the 
C. B. & Q. R. R. case private property was illegally taken 
for a subdivision of the state.

22 Iowa-Des Moines Bk. vs. Bennett, 284 U. S. 239; Missouri Ex rel 
Gaines v. Canada, 305 U. S. 337; Mosher v. City of P h o e n ix ,  287 
U. S. 29; C. B. & Q. R. R. v. City of Chicago, 166 U. S. 226.



2 3

But in this case there is no connection between the 
state and the election commissioners, even if the court did 
find them theoretically to be state officers, any more than 
if they had been charged with stealing the voters’ money 
instead of their ballots because the connection of the 
actions of the state and the commissioners is too remote, 
for as was said by this court in Grovey v. Townsend, 295 
U. S. 45:

“The argument is that as a negro may not be denied 
a ballot at a general election on account of his race 
or color, if exclusion from the primary renders his 
vote at the general election insignificant and useless, 
the result is to deny him the suffrage altogether. So 
to say is to confuse the privilege of membership in a 
party with the right to vote for one who is to hold a 
public office. With the former the state need have 
no concern, with the latter it is bound to concern it­
self, for the general election is a function of the state 
government and. discrimination by the state as respects 
participation by negroes on account of their race 
or color is prohibited by the Federal Constitution 
(Italics supplied.)

14TH AMENDMENT EMBRACES ALL CIVIL RIGHTS 
THAT MEN HAVE: THOSE THAT CONGRESS DE­
SIRED TO PUNISH CRIMINALLY WOULD HAVE 
TO BE SET FORTH IN CODE OF LAWS.

When the 5th Sec. of the 14th Amendment was pro­
posed in Congress, a clause was offered reading thus:

“Congress shall have power to make all laws which 
shall be necessary and proper to secure to the citizens



24

of each state all the privileges and immunities of 
citizens in the several states, and to all persons in the 
several states equal protection in the rights of life, 
liberty and property.”

That, of course, was not adopted, but if it had been, 
Congress would have then had the power to adopt af­
firmative legislation, and to make a code of regulations 
such as it has power to make original laws touching com­
merce. That code of laws could have extended to the 
original power embracing all of the rights of the citizen 
covering immunities, privileges, life, liberty, property and 
equality.23

Here appellants in effect contend that Congress intended 
Sec. 20 C. C. to accomplish objects and purposes that could 
only be accomplished by a code of laws covering all of 
the civil rights of man.

Congress can only, by proper legislation, render harm­
less hostile legislation or actions of states, or perhaps 
punish the agents of the State for enumerated and de­
fined acts, which acts would have to be so enumerated 
and defined because the 14th Amendment covers all of 
the civil rights that men have.

Where Congress has not merely prohibitory power, but 
affirmative, original power given up to it by the states, 
such as to regulate commerce, coin money, carry mail, 
lay tariff, it is different; it is vested with power of general 
legislation on those subjects;24 and it is to one of the rights 
which Congress has affirmative, original power to enact

23 See, Bannon, “ The Fourteenth Amendment,”  pp. 459, 461.
24 Bannon, “ The Fourteenth Amendment, p. 462.



general laws, as contradistinguished from the 14th Amend­
ment, which covers prohibitory power, that Sec. 20 appears 
to apply.

In passing on the nature of the legislation that Congress 
can provide under the 14th Amendment, this Court has 
said:25

“Such legislation cannot properly cover the whole 
domain of rights appertaining to life, liberty and 
property, defining them and providing for their vin­
dication. That would be to establish a code of munici­
pal law regulative of all private rights between man 
and man in society. It would be to make Congress 
take the place of state legislatures, and supersede 
them. It is absurd to affirm that because the rights 
of life, liberty and property (which include all civil 
rights that men have) are by the amendment sought 
to be protected against invasion on the part of the 
state without due process of law, Congress may there­
fore enact due process of law in every case; and that 
because denial by a state to any person of the equal 
protection of the law is prohibited, therefore Congress 
may establish laws for their equal protection. In 
fine, the legislation which Congress is authorized to 
adopt in this behalf is not general legislation upon the 
rights of the citizen, but corrective legislation, this 
is, such as may be necessary for counteracting such 
laws as states may adopt, and which, by the amend­
ment, they are prohibited from making, or such acts 
or proceedings as the state may commit or take, and 
which, by the amendment, they are prohibited from 
committing or t a k i n g (Italics supplied.)

25 The Civil Rights Cases, 109 U. S. 3.



2 6

When the court said “such acts” it undoubtedly con­
templated that Congress would define “ such acts” as it 
intended to punish criminally.

It seems clear from the language of that case that 
Sec. 20 could have no application to the rights protected 
by the 14th Amendment for Sec. 20 is all inclusive in 
scope, and would run counter to just what this Court 
said could not be done, i. e., “such legislation cannot 
properly cover the whole domain of rights appertaining 
to life, liberty and property.” That section is general 
legislation, and it is said in the aforesaid opinion, “the 
legislation which Congress is authorized to adopt in this 
behalf is not general legislation.”

Of course, Congress may under the amendment, provide 
legislation in advance to meet the exigency when it arises, 
but when it does so it should specify and define the acts 
of the states and its agents which are to be criminal cases, 
all in the manner set forth in the opinion in The Civil 
Rights cases aforesaid.



27

CONCLUSION.

With respect to the other points involved in this case, 
we submit the matter upon what is said in our principal 
brief.

We respectfully submit that the judgment of the Dis­
trict Court should be affirmed.

WARREN O. COLEMAN,
1329 Whitney Building,

New Orleans, Louisiana, 
CHARLES W. KEHL, 
FERNANDO J. CUQUET, JR., 

Carondelet Building,
New Orleans, Louisiana, 

Attorneys for Defendants 
and Appellees.



28
APPENDIX.

I.

Commissioners Selected Pursuant to Act 46 
of 1940, Sec. 61.

Appellant errs when it states in note 2, p. 56 of its 
brief that the selection of commsisioners at the election 
involved in this case must have been under sections 2675 
and 2678 of La. Gen. Stat. Ann. (Dart, 1939).

Those sections have been entirely superseded by Act 
46 of 1940. Although a change in the personnel of the 
old Parish Committee does not take place until January, 
1944, Sec. 19 of Act 46 of 1940 recognizes and continues 
the old committee in office until the January, 1944 election, 
but the committee is governed by Act 46 of 1940, and the 
commissioners of election involved in this case were 
selected pursuant to Act 46 of 1940, there being no warrant 
for the assumption that the provisions of Act 46 of 1940 
are not operative until January, 1944.

II.

Commissioners Not Paid By State Treasury.
Appellant is incorrect in stating (B. p. 57) that the 

commissioners receive from the state treasury three dol­
lars for each day’s active service, citing Section 2675.

That section has been superseded by Secs. 35 and 61 of 
Act 46 of 1940, which provides that the municipality shall 
pay the commissioners. The payment does not come from 
the State Treasury.



29

III.

Art. 8, Sec. 15 of Constitution as Amended by 
Act 80 of 1934.

“The Legislature shall provide some plan by which 
the voters may prepare their ballots in secrecy at the 
polls. This section shall not be construed so as to 
prevent the names of independent candidates from 
being printed on the ballots with a device; and names 
of candidates may' be written on the ballot. These 
provisions shall not apply to elections for the imposi­
tion of special taxes, for which the Legislature shall 
provide special laws.

“Provided that no person whose name is not au­
thorized to be printed on the official ballot, as the 
nominee of a political party or as an independent 
candidate, shall be considered a candidate for any 
office unless he shall have filed with the Clerks of 
the District Court of the Parish or parishes in which 
such election is to be held, or the Clerk of the Civil 
District Court of the Parish of Orleans if he be a 
resident of the Parish of Orleans, at least ten (10) 
days before the general election, a statement contain­
ing the correct name under which he is to be voted 
for and containing the further statement that he is 
willing and consents to be voted for for that office, 
and provided further that no commissioners of elec­
tion shall count a ballot as cast for any person whose 
name is not printed on the ballot or who does not be­
come a candidate in the foregoing manner.” (Italics 
supplied.)





N. A. A, C. F>
®9 FIFTH AVENUE 
NEW YORK* N* Y,

SUPREME COURT OF THE UNITED STATES.
No. 618.— October Term, 1940.

The U nited States o f  A m erica , 
A ppellan t, 

vs.
Patrick B. Classic, Joh n  A . M orris, 

Bernard W . Y eager, J r., W illiam  
Schumacher, and  J . J . F edder- 
mann.

A pp ea l fro m  the D istrict 
C ourt o f  the U nited  States 
fo r  the E astern  D istrict 
o f  Louisiana.

[M ay  26, 1941.]

Mr. Justice Stone delivered  the op in ion  o f  the Court.

Two counts o f  an indictm ent fo u n d  in  a  fed era l d istrict cou rt 
charged that appellees, Com m issioners o f  E lections, con du ctin g  a 
primary election under L ouisiana law, to  nom inate a candidate o f  
the Dem ocratic P a rty  fo r  representative in  Congress, w illfu lly  
altered and fa lsely  cou nted  and certified the ballots o f  voters 
cast in the p rim ary  election. T he questions fo r  decision  are 
whether the righ t o f  qualified  voters to vote in  the Louisiana 
primary and to  have their ballots counted  is a r igh t “ secured  b y  
the Constitution”  w ith in  the m eaning o f § § 1 9  and 20 o f the C rim ­
inal Code, and whether the acts o f  appellees charged in  the in d ict­
ment violate those sections.

On September 25, 1940, appellees were in d icted  in  the D istrict 
Court for  Eastern Louisiana fo r  v iolations o f  § §1 9  and 20 o f the 
Criminal Code, 18 U. S. C. §§ 51, 52. The first eount o f  the in d ict­
ment alleged that a p rim ary  election  was held  on  Septem ber 10, 
1940, for  the purpose o f  nom inating a candidate o f  the D em o­
cratic Party fo r  the office o f  R epresentative in  Congress fo r  the 
Second Congressional D istrict o f  Louisiana, to  be chosen at an 
election to be held on N ovem ber 1 0 th ; that in  that d istrict n om i­
nation as a candidate o f  the D em ocratic P a rty  is and always has 
been equivalent to an e le c t io n ; that appellees were Com m ission­
ers of Election, selected in  accordance w ith  the L ouisiana law  to  
conduct the p rim ary  in  the Second  P recin ct o f  the T enth  W a rd



2 United States vs. Classic et al.

o f  N ew  Orleans, in  w hich  there were five h un dred  and thirty-seven 
citizens and qualified  voters.

The charge, based on these allegations, was that the appellees 
con sp ired  w ith  each other and  w ith  others unknow n, to  in jure and 
oppress citizens in  the fre e  exercise and  en joym en t o f  rights and 
priv ileges secured  to  them  b y  the C onstitu tion  and  Laws of the 
U n ited  States, nam ely, (1 ) the r igh t o f  qualified  voters who cast 
th e ir  ballots in  the p rim ary  election  to  have th eir ballots counted 
as cast fo r  the candidate o f  their choice, and  (2 ) the right of the 
candidates to  ru n  fo r  the office o f  C ongressm an and to have the 
votes in  fa v o r  o f  their nom ination  cou nted  as cast. The overt acts 
alleged  w ere that the appellees a ltered eighty-three ballots cast 
fo r  one candidate and  fou rteen  cast fo r  another, marking and 
cou ntin g  them  as votes fo r  a th ird  candidate, and that they falsely 
certified  the num ber o f votes cast fo r  the respective candidates to 
the chairm an o f  the Secon d  C ongressional D istrict Committee.

The second  count, repeating  the allegations o f  fa c t  already de­
tailed , ch arged  that the appellees, as Com m issioners o f  Election 
w illfu lly  and under co lor o f  law  su b jected  registered  voters at the 
p rim ary  w ho w ere inhabitants o f  L ouisiana  to  the deprivation of 
rights, priv ileges and im m unities secured  and protected  by the 
C onstitu tion  and Law s o f the U n ited  States, nam ely their right to 
cast their votes f o r  the candidates o f  their choice and to have their 
votes counted  as cast. I t  fu rth e r  charged  that this deprivation 
was effected  b y  the w illfu l fa ilu re  and re fu sa l o f defendants to 
cou nt the votes as cast, b y  their alteration  o f  the ballots, and by 
th eir fa lse certification  o f  the num ber o f votes cast fo r  the respec­
tive  candidates in  the m anner a lready  indicated.

T he D istrict C ourt sustained a dem urrer to  counts 1 and 2 on 
the grou n d  that §§ 19 an d  20 o f  the C rim inal Code under which 
the in d ictm en t was draw n  do not a p p ly  to  the state o f  faets dlS' 
closed  b y  the in d ictm en t and  that, i f  app lied  to  those facts, §. 
an d  20 are w ithout constitutional sanction , cit in g  United States v 
Gradwell, 243 U. S. 476, 488, 4 8 9 ; Newberry v. United States, •> 
U. S. 232. T he case com es here on  d irect appeal from  the Dis ««  
C ourt u n der the provisions o f  the C rim inal A ppea ls  A ct, Ju i«a 
Code, § 2 3 8 ,1 8  U. S. C. § 6 82 ; 28 U. S. C. § 345, w hich  author® 1 ‘  
appeal b y  the U n ited  States fro m  a decision  or judgm ent sustai  ̂
a dem u rrer to  an in d ictm en t w here the decision  or judgmen



United States vs. Classic et al. 3

“ based upon  the in va lid ity  or  construction  o f  the statute upon  
which the indictm ent is fo u n d e d ” .

Upon such an appeal our review  is confined to  the questions o f 
statutory construction  and v a lid ity  decided  b y  the D istrict Court. 
United States v. Patten, 226 U. S. 5 25 ; United States v. Birds ell, 
233 U. S. 223, 2 30 ; United States v. Borden Co., 308 U. S. 188, 
192-193. H ence, we do not pass u p on  various argum ents advanced 
by appellees as to the sufficiency and  construction  o f the in d ict­
ment.

Section 19 o f the C rim inal Code condem ns as a crim inal offense 
any conspiracy to  in ju re  a citizen  in  the exercise “ o f  any righ t or 
privilege secured to  h im  b y  the C onstitution  or law s o f  the U nited 
States” . Section 20 makes it a penal offense fo r  anyone who, 
“ acting under co lor  o f  any la w ”  “ w illfu lly  subjects or causes to  
be subjected any inhabitant o f  any state . . .  to  the depriva ­
tion of any rights, priv ileges and im m unities secured  and protected  
by the Constitution and law's o f  the U n ited  S tates” . The G overn­
ment argues that the righ t o f  a qualified  voter in  a Louisiana con ­
gressional prim ary  election  to  have his vote  cou nted  as cast is a 
right secured b y  A rtic le  I, §§ 2 and 4 o f  the C onstitution, and that 
a conspiracy to  deprive the citizen  o f  that r igh t is a v io la tion  o f 
§ 19, and also that the w illfu l action  o f  appellees as state officials, 
in^falsely counting the ballots at the p rim ary  election  and in  fa lse ly  
certifying the count, deprived  qualified voters o f  that r igh t and 
of the equal protection  o f  the laws guaranteed b y  the F ourteenth  
Amendment, all in  v iola tion  o f § 20 o f  the C rim inal Code.

Article I, §~2)of the C onstitution, com m ands that ‘ ‘ The H ouse o f 
KSpiesentatives shall be com posed o f m em bers chosen every  second 
Year by the P eople o f  the several States and the E lectors in  each 
State shall have the qualifications requisite fo r  electors o f  the m ost 
numerous B ranch o f  the State L egislature ’ ’ . B y  § 4 o f  the same 
article “ The times, p laces an d  m anner o f h old in g  elections fo r  
Senators and Representatives shall be prescribed  iri each State b y  
the Legislature th e r e o f ; bu t the Congress m ay at an y  tim e b y  L aw  
make or alter such R egu lations except as to  the P laces o f  chusing 
Senators” . Such righ t as is secured b y  the C onstitution  to  quali­
fied voters to choose m em bers o f  the H ouse o f  R epresentatives is 
thus to be exercised in  con form ity  to  the requirem ents o f  state law  
subject to the restrictions prescribed  b y  § 2 and to  the authority



4 United States vs. Classic et al.

conferred on Congress by § 4, to regulate the times, places and 
manner of holding elections for representatives.
''"'We look then to the statutes of Louisiana here involved to ascer­
tain the nature of the right which under the constitutional man­
date they define and confer on the voter and the effect upon its 
exercise of the acts with which appellees are charged, all with the 
view to determining, first, whether the right or privilege is one 
secured by the Constitution of the United States, second, whether 
the effect under the state statute of appellee’s alleged acts is such 
that they operate to injure or oppress citizens in the exercise of 
that right within the meaning of § 19 and to deprive inhabitants 
of the state of that right within the meaning of § 20, and finally, 
whether §§19 and 20 respectively are in other respects applicable 
o the alleged acts of appellees..

Pursuant to the authority given by § 2 of Article I. of the Consti­
tution, and subject to the legislative power of Congress under § 4 
of Article I, and other pertinent provisions of the Constitution, the 
states are given, and in fact exercise a wide discretion in the for­
mulation of a system for the choice by the people of representatives 
in Congress. In common with many other states Louisiana has 
exercised that discretion by setting up machinery for the effective 
choice of party candidates for representative in Congress by pri­
mary elections and by its laws it eliminates or seriously restricts 
the candidacy at the general election of all those who are defeated 
at the primary. All political parties, which are defined as those 
that have cast at least 5 per cent of the total vote at specified pre­
ceding elections, are required to nominate their candidates for 
representative by direct primary elections. Louisiana Act o. 
46, Regular Session, 1940, §§ 1 and 3. _

The primary is conducted by the state at public expense. c 
No. 46, supra, § 35. The primary, as is the general election, is sub­
ject to numerous statutory regulations as to the time, place an 
manner of conducting the election, including provisions to 
that the ballots cast at the primary are correctly counted, an 
results of the count correctly recorded and certified to the 
tary of State, whose duty it is to place the names of the succe 
candidates of each party on the official ballot.1 The Secrejuy^

l  The ballots are printed at public expense, § 35 of Act N . pre.
Session, 1940, are furnished by the Secretary of State, J  3 n t0
scribed by statute, $ 37. Close supervision of the delivery o



United States vs.. Classic et al. 5

State is prohibited from placing on the official ballot the name of 
any person as a candidate for any political party not nominated 
in accordance with the provisions of the Act. Act 46, § 1.

One whose name does not appear on the primary ballot, if other­
wise eligible to become a candidate at the general election, may do 
so in either of two ways, by filing nomination papers with the 
requisite number of signatures or by having his name “ written in”  
on the ballot on the final election. Louisiana Act No. 224, Regular 
Session 1940, §§50, 73. Section 87 of Act No. 46 provides “ No 
one who participates in the primary election of any political party 
shall have the right to participate in a primary election of any 
other political party with the view of nominating opposing can­
didates, nor shall he be permitted to sign any nomination for any 
opposing candidate or candidates, nor shall he be permitted 
to be himself a candidate in opposition to anyone nominated 
at or through a primary election in which he took part” .

Section 15 of Article VIII of the Constitution of Louisiana as 
amended by Act 80 of 1934, provides that “ No person whose name 
is not authorized to be printed on the official ballot as a nominee of 
a political party or an independent candidate shall be considered 
a candidate unless he shall file in the appropriate office at least ten 
days before the general election”  a statement containing the cor­
rect name under which he is to be voted for and containing the fur­
ther statement that he is willing and consents to be voted for for 
that office. The article also provides that “ no commissioner of 
election shall count a ballot as cast for any person whose name is 
not printed on the ballot or who does not become a candidate in the 
foregoing manner ’ ’. Applying these provisions the Louisiana Court 
of Appeals for the Parish of Orleans has held in Serpas v. Treiucq, 
decided April 7, 1941, rehearing denied with opinion April 21, 
1941, that an unsuccessful candidate at the primary may not offer 
himself as a candidate at a general election, and that votes for him
the election commissioners is prescribed, §§ 43-46. The polling places are re- 
qinred to be equipped to secure secrecy, 5§ 48-50; §§54-57. The selection of 
election commissioners is prescribed, § 61 and their duties detailed. The com­
missioners must swear to conduct the election impartially, § 64 and are subject 
to punishment for deliberately falsifying the returns or destroying the lists 
and ballots, §§ 98, 99. They must identify by certificate the ballot boxes used, 
so7, keep a triplicate list o f voters, §68, publicly canvass the return, §74 
and certify the same to the Secretary of State, § 75.



6 United States vs. Classic et al.

may not lawfully be written into the ballot or counted at such an 
election.

The right to vote for a representative in Congress at the general 
election is, as a matter of law, thus restricted to the successful 
party candidate at the primary, to those not candidates at the 
primary who file nomination papers, and those whose names may be 
lawfully written into the ballot by the electors. Even if, as appel­
lees argue, contrary to the decision in Serpas v. Trebucg, supra,, 
voters may lawfully write into their ballots, cast at the general elec­
tion, the name of a candidate rejected at the primary and have their 
ballots counted, the practical operation of the primary law in other­
wise excluding from the ballot on the general election the names of 
candidates rejected at the primary is such as to impose serious re­
strictions upon the choice of candidates by the voters save by vot­
ing at the primary election. In fact, as.allegedjnjthe indictment,
the practical operation of the primary, in. Louisiana, is and has been 
since the primary election was established in 1900 to secure the 
election of the Democratic primary nominee for the Second Cm- 
- ressional District of Louisiana.2

Interference with the right to vote in the Congressional primary 
in the Second Congressional District for the choice of Democratic 
candidate for Congress is thus as a matter of law and in fact an 
interference with the effective choice of the voters at the only stage 
of the election proceedure when their choice is of significance, since 
it is at the only stage when such interference could have any prac­
tical effect on the ultimate result, the choice of the Congressman to 
represent the district. The primary in Louisiana is an integral 
part of the procedure for the popular choice of Congressman. The 
right of qualified voters to vote at the Congressional primary m 
Louisiana and to have their ballots counted is thus the right to 
participate in that choice.
^ We come then to the question whether that right is one secured 
by the Constitution. Section 2 of Article I commands that Con­
gressmen shall be chosen by the people of the several states by 
electors, the qualifications of which it prescribes. The rightj^

2 For a discussion of the practical effect of the primary m con 
estricting election of candidates at general elections, see, as x Merriau 
xovernment in the House of Representatives (1927) 172, > ’ the
end Overacker, Primary Elections (1928) 267-269; Stoney, Suffrage 
South; 29 Survey Graphic, 163, 164.



United States vs. Classic et al. 7

the people to choose, whatever its appropriate constitutional limi­
tations, where in other respects it is defined, and the mode of its 
exercise is prescribed by state action in conformity to the Con­
stitution, is a right established and guaranteed by the Constitution 
and hence is one secured by it to those citizens and inhabitants of 
the state entitled to exercise the right. Ex parte Yarbrough, 110 
U. S. 651; United States v. Mosley, 238 U. S. 383. And see Hague 
v. C. I. 0., 307 U. S. 496, 508, 513, 526, 527, 529, giving the same 
interpretation to the like phrase “ rights”  “ secured by the Constitu­
tion” appearing in § 1 of the Civil Rights Act of 1871, 17 Stat. 13. 
While, in a loose sense, the right to vote for representatives in 
Congress is sometimes spoken of as a right derived from the states, 
see, Minor v. Happersett, 21 Wall. 162, 170; United States v. Reese, 
92 U. S. 214, 217-218; McPherson v. Blacker, 146 U. S. 1, 38-39; 
Breefflove v. Suttles, 302 U. S. 277, 283, this statement is true only 
in the sense that the states are authorized by the Constitution, to 
legislate on the subject as provided by § 2 of Art. I, to the extent 
that Congress has not restricted state action by the exercise of its 
powers to regulate elections under § 4 and its more general power 
under Article I, § 8, clause 18 of the Constitution “ to make all laws 
which shall be necessary and proper for carrying into execution the 
foregoing powers” . See Ex parte Siebold, 100 IT. S. 37; Ex parte 
Yarbrough, supra, 663, 664; Swafford v. Templeton, 185 U. S. 487; 
Wiley v. Sinkler, 179 U. S. 58, 64.

Obviously included within the right to choose, secured by the 
Constitution, is the right of qualified voters within a state to cast 
their ballots and have them counted at Congressional elections. 
This Court has consistently held that this is a right secured by the 
Constitution. Ex parte Yarbrough, supra; Wiley v. Sinkler, supra; 
Swafford v. Templeton, supra; United States v. Mosley, supra; see 
Ex parte Siebold, supra; In re Coy, 127 IT. S. 731; Logan v. United 
States, 144 U. S. 263. And since the constitutional command is 
without restriction or limitation, the right unlike those guaranteed 
by the Fourteenth and Fifteenth Amendments, is secured against 
the action of individuals as well as of states. Ex parte Yarbrough, 
supra; Logan v. United States, supra.

But we are now concerned with the question whether the right 
to choose at a primary election, a candidate for election as represen­
tative, is embraced in the right to choose representatives secured by 
Article I, § 2. We may assume that the framers of the Constitution



8 United States vs. Classic et al.

in adopting that section, did not have specifically in mind the 
selection and elimination of candidates for Congress by the direct 
primary any more than they contemplated the application of the 
commerce clause to interstate telephone, telegraph and wireless 
communication which are eoncededly within it. But in determining 
whether a provision of the Constitution applies to a new subject 
matter, it is of little significance that it is one with which the 
framers were not familiar. For in setting up an enduring frame­
work of government they undertook to carry out for the indefinite 
future and in all the vicissitudes of the changing affairs of men, 
those fundamental purposes which the instrument itself discloses. 
Hence we read its words, not as we read legislative codes which 
are subject to continuous revision with the changing course of 
events, but as the revelation of the great purposes which were in­
tended to be achieved by the Constitution as a continuing in­
strument of government. Cf. Davidson v. New Orleans, 96 U. S. 
97; Brown v. Walker, 161 U. S. 591, 595; Robertson v. Baldwin, 
165 U. S. 275, 281, 282. If we remember that “ it is a Constitution 
we are expounding” , we cannot rightly prefer, of the possible 
meanings of its words, that which will defeat rather than effectuate 
the Constitutional purpose.

That the free choice by the people of representatives in Congress, 
subject only to the restrictions to be found in §§ 2 and 4 of Article 
I and elsewhere in the Constitution, was one of the great purposes 
of our Constitutional scheme of government cannot be doubted. 
We cannot regard it as any the less the constitutional purpose or its 
words as any the less guarantying the integrity of that choice 
when a state, exercising its privilege in the absence of Congres­
sional action, changes the mode of choice from a single step, a gen­
eral election, to two, of which the first is the choice at a primary 
of those candidates from whom, as a second step, the representative 
in Congress is to be chosen at the election.

Nor can we say that that choice which the Constitution protects 
is restricted to the seeond step because § 4 of Article I, as a means of 
securing a free choice of representatives by the people, has author­
ized Congress to regulate the manner of elections, without making 
any mention of primary elections. Forjwe think that the authority 
of Congress, given by § 4, includes the authority to regulate primary 
elections when, as in this case, they are a step in the exercise by the 
people of their choice of representatives in Congress. The point



United States vs. Classic et al. 9

whether the power conferred by § 4 includes in any circumstances 
the power to regulate primary elections was reserved in United 
States v. Gradwell, supra, 487. In Newberry v. United States, 
supra, four Justices of this Court were of opinion that the term 
“ elections”  in §4 of Article I did not embrace a primary elec­
tion since that procedure was unknown to the framers. A fifth 
Justice who with them pronounced the judgment of the Court, 
was of opinion that a primary law enacted before the adop­
tion of the Seventeenth Amendment, for the nomination of candi­
dates for Senator, was not an election within the meaning of § 4 
of Article I of the Constitution, presumably because the choice of 
the primary imposed no legal restrictions on the election of Sena­
tors by the state legislatures to which their election had been com­
mitted by Article I, § 3. The remaining four Justices were of the 
opinion that a primary election for the choice of candidates for 
Senator or Representative were elections subject to regulation by 
Congress within the meaning of § 4 of Article I. The question then 
has not been prejudged by any decision of this Cojurt.

To decide it we turn to tEe”words of the Constitution read in 
their historical setting as revealing the purpose of its framers, 
and in search for admissible meanings of its words which, in the 
circumstances of their application, will effectuate those purposes. 
As we have said, a dominant purpose of § 2, so far as the se­
lection of representatives in Congress is concerned, was to se­
cure to the people the right to choose representatives by the desig­
nated electors, that is to say, by some form of election. Cf. the 
Seventeenth Amendment as to popular “ election”  of Senators. 
From time immemorial an election to public office has been in point 
of substance no more and no less than the expression by qualified 
electors of their choice of candidates.

Long before the adoption of the Constitution the form and 
mode of that expression had changed from time to time. There 
is no historical warrant for supposing that the framers were 
under the illusion that the method of effecting the choice of the 
electors would never change or that if it did, the change was for 
that reason to be permitted to defeat the right of the people to 
choose representatives for Congress which the Constitution had 
guaranteed. The right to participate in the choice of representa­
tives for Congress includes, as we have said, the right to cast a 
ballot and to have it counted at the general election whether for



1 0 United States vs. Classic et at.

the successful candidate or not. Where the state law has made the 
y  primary an integral part of the procedure of choice, where in 

fact the primary effectively controls the choice, the right of the
elector to have his ballot counted at the primary, is likewise included 
in the right protected by Article I, § 2. And this right of partici­
pation is protected just as is the right to vote at the election, where 
the primary is by law made an integral part of the election ma­
chinery, whether the voter exercises his right in a party primary 
which invariably, sometimes or never determines the ultimate choice 
of the representative. Here, even apart from the circumstance that 
the Louisiana primary is made by law an integral part of the pro- 
cedure of choice, the right to choose a representative is in fact conJ 
trolled by the primary because, as is alleged in the indictment, thd 
choice of candidates at the Democratic primary determines the 
choice of the elected representative. Moreover, we cannot close 
our eyes to the fact already mentioned that the practical influence 
of the choice of candidates at the primary may be so great as to 
affect profoundly the choice at the general election even though 
there is no effective legal prohibition upon the rejection at the
election of the choice made at the primary and may thus operate to 
deprive the voter of his constitutional right of choice. This was 
noted and extensively commented upon by the concurring Justices
in Newberry v. United States, supra, 263-269, 285, 287.

Unless the constitutional protection of the integrity of “ elec­
tions”  extends to primary elections, Congress is left powerless to 
effect the constitutional purpose, and the popular choice of repre­
sentatives is stripped of its constitutional protection save only as 
Congress, by taking over the control of state elections, may exclude 
from them the influence of the state primaries.3 Such an expedient 
would end that state autonomy with respect to elections which the 
Constitution contemplated that Congress should be free to leave un­
disturbed, subject only to such minimum regulation as it should find 
necessary to insure the freedom and integrity of the choice. Words,
3 Congress has recognized the effect of primaries on the free exercise of the 

right to choose the representatives, for it has inquired into frauds at pnma 
as well as at the general elections in judging the “ Elections Returns a 
Qualificaions of its Own Members”, Art. I, §5. See Grace \  mRept. No. 158, 63d Cong., 2d Sess.; Peddy v. Mayfield, S. Kept. No. 973, w  
Cong., 2d Sess.; Wilson v. Vare, S. Rept. No 1858, 70th Cong., 2d Sess., »• 
Rept. No. 47, 71st Cong., 2d Sess., and S. Res. Ill, 71st Cong., 2d Sess. g See also Investigation of Campaign Expenditures m the 1940 Campaig , 
Rept. No. 47, 77th Cong., 1st Sess., p. 48 et seq.



United States vs. Classic et al. 11

especially those of a constitution, are not to be read with such 
stultifying narrowness. The words of §§ 2 and 4 of Article I, 
read in the sense which is plainly permissible and in the light of 
the constitutional purpose, require us to hold that a primary elec­
tion which involves a necessary step in the choice of candidates 
for election as representatives in Congress, and which in the cir­
cumstances of this case controls that choice, is an election within 
the meaning of the constitutional provision and is subject to con­
gressional regulation as to the manner of holding it.

Not only does § 4 of Article I authorize Congress to regulate the 
manner of holding elections, but by Article I, § 8, Clause 18, Con­
gress is given authority “ to make all laws which shall be necessary 
and proper for carrying into execution the foregoing powers and 
all other powers vested by this Constitution in the Government 
of the United States or any department or officer thereof.”  
This provision leaves to the Congress the choice of means by 
which its constitutional powers are to be carried into execution. 
“ Let the end be legitimate; let it be within the scope of the Con­
stitution, and all means which are appropriate which are plainly 
adapted to that end which are not prohibited but consist of the 
letter and spirit of the Constitution, are constitutional” . McCul­
loch v. Maryland, 4 Wheat. 316, 421. That principle has been con­
sistently adhered to and liberally applied, and extends to the con­
gressional power by appropriate legislation to safeguard the right 
of choice by the people of representatives in Congress secured by 
§2 of Article I. Ex parte Yarbrough, supra, 657, 658; cf. Second 
Employers Liability Cases, 233 U. S. 1, 49; Houston & Texas By. 
Co. v. United States, 234 U. S. 342, 350, 355; Wilson v. New, et al., 
243 U. S. 332, 346, 347; First National Bank v. Union Trust Comr 
pany, 244 U. S. 416, 419; Selective Draft Cases, 245 U. S. 366, 381; 
United States v. Ferger, et al., 250 U. S. 199, 205; Hamilton v. Ken­
tucky Distillers Co., 251 U. S. 146, 155, 163 ; Jacob Rupert v. Caffey, 
251 U. S. 264; Smith v. Kansas City Title & Trust Co., 255 U. S. 
180; United States v. Darby, No. 82, decided February 3, 1941, and 
cases cited.

There remains the question whether §§19 and 20 are an exercise 
of the congressional authority applicable to the acts with which 
appellees are charged in the indictment. Section 19 makes it a 
crime to conspire to “ injure”  or “ oppress”  any citizen “ in the



12 United States vs. Classic et al.

free exercise of any right or privilege secured to him by the Con­
stitution” .4 In Ex parte Yarbrough, supra, and in United States 
v. Mosley, supra, as we have seen, it was held that the right to 
vote in a congressional election is a right secured by the Consti­
tution, and that a conspiracy to prevent the citizen from voting 
or to prevent the official count of his ballot when cast, is a con­
spiracy to injure and oppress the citizen in the free exercise of a 
right secured by the Constitution within the meaning of § 19. In 
reaching this conclusion the Court found no uncertainty or am­
biguity in the statutory language, obviously devised to protect the 
citizen “ in the free exercise of any right or privilege secured to 
him by the Constitution” , and concerned itself with the question 
whether the right to participate in choosing a representative is so 
secured.5 Such is our function here. Conspiracy to prevent the 
official count of a citizen’s ballot, held in United States v. Mosley, 
supra, to be a violation of § 19 in the case of a congressional elec­
tion, is equally a conspiracy to injure and oppress the citizen when 
the ballots are cast in a primary election prerequisite to the choice 
of party candidates for a congressional election. In both cases the 
right infringed is one secured by the Constitution. The injury 
suffered by the citizen in the exercise of the right is an injury which 
the statute describes and to which it applies in the one case as in 
the other.

The suggestion that § 19, concededly applicable to conspiracies 
to deprive electors of their votes at congressional elections, is not 
sufficiently specific to be deemed applicable to primary elections, 
will hardly bear examination. Section 19 speaks neither of elec-
4 Section 19 of the Criminal Code (U. S. C., Title 18, Sec. 51):“If two or more persons conspire to injure, oppress, threaten, or intimidate 

any citizen in the free exercise or enjoyment of any right or privilege secured 
to him by the Constitution or laws of the United States, or because of tis 
having so exercised the same, or if two or more persons go in disguise on the 
highway, or on the premises of another, with intent to prevent or hinder his 
free exercise or enjoyment of any right or privilege so secured, they shall e fined not more than $5,000 and imprisoned not more than ten years, and sha , 
moreover, be thereafter ineligible to any office, or place of honor, profit, or 
trust created by the Constitution or laws of the United States.” ("•
$ 5508; Mar. 4, 1909, c. 321, § 19, 35 Stat. 1092.)
5 In United States v. Mosley, 238 U. S. 383, 386, the Court thought that 

‘  ‘ Manifestly the words are broad enough to cover the case ’ it eanvasse 
length the objections that § 19 was never intended to apply to crimes aga 
the franchise, and the other contention, which it also rejected, that § 19 
been repealed or so restricted as not to apply to offenses of that class, 
unnecessary to repeat that discussion here.



United States, vs. Classic et al. 13

tions nor of primaries. In unambiguous language it protects “ any 
right or privilege secured by the Constitution” , a phrase which as 
we have seen extends to the right of the voter to have his vote 
counted in both the general election and in the primary election, 
where the latter is a part of the election machinery, as well as to 
numerous other constitutional rights which are wholly unrelated 
to the choice of a representative in Congress. United States v. Wad­
dell, 112 U. S. 76; Logan v. United States, 144 U. S. 263; In re 
Quarles, 158 U. S. 532; Motes v. United States, 178 U. S. 458; 
Quinn V. United States, 238 U. S. 347.

In the face of the broad language of the statute, we are pointed 
to no principle of statutory construction and to no significant legis­
lative history which could be thought to sanction our saying that 
the statute applies any the less to primaries than to elections, 
where in one as in the other it is the same constitutional right 
which is infringed. It does not avail to attempt to distinguish the 
protection afforded by § 1 of the Civil Eights Act of 1871,6 to 
the right to participate, in primary as well as general elections,, 
secured to all citizens by the Constitution, see Guinn v. United 
States, 238 U. S. 347; Nixon v. Herndon, 273 U. S. 536; Nixon 
v. Condon, 286 U. S. 73; Lane v. Wilson, 307 U. S. 268, on the 
ground that in those cases the injured citizens were Negroes whose 
rights were clearly protected by the Fourteenth Amendment. At 
least since E'x parte Yarbrough, supra, and no member of the Court 
seems ever to have questioned it, the right to participate in the 
choice of representatives in Congress has been recognized as a right 
protected by Art. I, §§ 2 and 4 of the Constitution.7 Differences of 
opinion have arisen as to the effect of the primary in particular cases 
on the choice of representatives. But we are troubled by no such 
doubt here. Hence, the right to participate through the primary in 
the choice of representatives in Congress—a right clearly secured by
6 Section 1 reads: ‘ ‘ Every person who, under color of any statute, ordinance, 

regulation, custom or usage, of any State or Territory, subjects or causes to be 
subjected, any citizen of the United States or other person within the juris- 
iction thereof to the deprivation of any rights, privileges or immunities se­
cured by the Constitution and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper proceeding for redress. ”

9. g. Guinn v. United States, 238 U. S. 347; United States v. O ’Toole, 
Fed. 993, a ff’d United States v. Gradwell, 243 U. S. 476; Aczel v. United 

‘ rates, 232 Fed. 652; Felix v. United States, 186 Fed. 685; Karem v. United 
teres, 121 Fed. 250; Walker v. United States, 93 F. (2d) 383; Luteran v. 

Umted States, 93 F. (2d) 395.



United States vs. Classic et al.

the Constitution—is within the words and purpose of § 19 in the 
same manner and to the same extent as the right to vote at the gen­
eral election. United States v. Mosley, supra. It is no extension of 
the criminal statute, as it was not of the civil statute in Nixon v. 
Herndon, supra, to find a violation of it in a new method of inter­
ference with the right which its words protect.. For it is the consti­
tutional right, regardless of the method of interference, which is the 
subject of the statute and which in precise terms it protects from in­
jury and oppression.

It is hardly the performance of the judicial function to con­
strue a statute, which in terms protects a right secured by the 
Constitution, here the right to choose a representative in Con­
gress, as applying to an election whose only function is to ratify 
a choice already made at the primary but as having no application 
to the primary which is the only effective means of choice. To 
withdraw from the scope of the statute, an effective interference 
with the constitutional right of choice, because other wholly differ­
ent situations not now before us may not be found to involve such 
an interference, cf. United States v. Bathgate, 246 U. S. 220; 
United States v. Cradwell, 243 U. S. 476, is to say that acts plainly 
within the statute should be deemed to be without it because other 
hypothetical cases may later be found not to infringe the consti­
tutional right with which alone the statute is concerned.

If a right secured by the Constitution may be infringed by the 
corrupt failure to include the vote at a primary in the official count, 
it is not significant that the primary, like the voting machiffe, was 
unknown when § 19 was adopted.8 Abuse of either may infringe 
the right and therefore violate § 19. See United States v. Pleva, 
66 F. (2d) 529, 530; cf. Browder v. United States, 312 U. S. — • 
Nor does the fact that in circumstances not here present there 
may be difficulty in determining whether the primary so affecte 
the right of the choice as to bring it within the constitutional 
protection, afford any ground for doubting the construction 
and application of the statute once' the constitutional question
8 No conclusion is to be drawn from tbe failure of the Hatch Act, 53 Stafc 

1147, 18 XT. S. 0. § 61, to enlarge $ 19 by provisions specifically aPPllca;l t0 primaries. Its failure to deal with the subject seems to be attributame 
constitutional doubts, stimulated by Newberry v. United States, 25b . • 1which are here resolved. See 84 Cong. Rec., 76th Cong., 1st bess., p. ’ 
cf. Investigation of Campaign Expenditures in the 1940 Campaign, • F 
No. 47, 77th Cong., 1st Sess., p. 48.

14



United States vs. Classic ex al. 15

is resolved. That difficulty is inherent in the judicial admin­
istration of every federal criminal statute, for none, whatever 
its terms, can be applied beyond the reach of the congressional 
power which the Constitution confers. Standard Sanitary Mfg. Co. 
V. United States, 226 U. S. 20 • Hoke v. United States, 227 U. S. 308; 
Nash v. United States, 229 U. S. 373; United States v. Freeman, 239 
U. S. 117; United States v. F. W. Darby, No. 82, decided February 
3, 1941

The right of the voters at the primary to have their votes counted 
is, as we have stated, a right or privilege secured by the Constitu­
tion, and to this § 20 also gives protection.9 The alleged acts of ap-' 
pellees were committed in the course of their performance of duties 
under the Louisiana statute requiring them to count the ballots, to 
record the result of the count, and to certify the result of the elec­
tion. Misuse of power, possessed by virtue of state law and made 
possible only because the wrongdoer is clothed with the authority of 
state law, is action taken “ under color of”  state law. Ex parte 
Virginia, 100 U. S. 339, 346; Home Telephone & Telegraph Co. v. 
Los Angeles, 227 U. S. 278, 287, et seq.; Hague v. C. I. O., 307 
U. S. 496, 507, 519; cf. 101 F. (2d) 774, 790. Here the acts of 
appellees infringed the constitutional right and deprived the 
voters of the benefit of it within the meaning of § 20, unless by its 
terms its application is restricted to deprivations “ on account of 

Jnhabitant being an alien or by reason of his color or race 
The last clause oTT§"20 protects inhabitants of a state from being 

subjected to different punishments, pains or penalties by reason of 
alienage, color or race, than are prescribed for the punishment of 
citizens. That the qualification with respect to alienage, color 
and race, refers only to differences in punishment and not to de­
privations of any rights or privileges secured by the Constitution, 
is evidenced by the structure of the section and the necessities of 
the practical application of its provisions.. The qualification as to 
alienage, color and race, is a parenthetical phrase in the clause

20 0f the Criminal Code (M- s- Title 18, Sec. 5 2 ):Whoever, under color of any law, statute, ordinance, regulation, or custom, wilfully subjects, or causes to be subjected, any inhabitant of any State, 
erntory, or District to the deprivation of any rights, privileges, or immuni- 
ies secured or protected by the Constitution and laws of the United States, 
?r. o different punishments, pains, or penalties, on account of such inhabitant emg an alien, or by reason of his color, or race, than are prescribed for 
® punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both.” (E. S. § 5510; Mar. 4, 1909, c. 321, $ 20, 35 Stat. 1092.) ’ ’



16 United States vs. Classic et al.

penalizing different punishments “ than are prescribed for citizens” 
and in the common use of language could refer only to the subject 
matter of the clause and not to that of the earlier one relating to the
deprivation of rights to which it makes no reference in terms.

Moreover the prohibited differences of punishment on account of 
alienage, color or race, are those referable to prescribed punish­
ments which are to be compared with those prescribed for citizens. 
A standard is thus set up applicable to differences in prescribed 
punishments on account of alienage, color or race, which it would 
be difficult if not impossible to apply to the willful deprivations of 
constitutional rights or privileges, in order to determine whether 
they are on account of alienage, color or race. We think that § 20 
authorizes the punishment of two different offenses. The one is 
willfully subjecting any inhabitant to the deprivation of rights se­
cured by the Constitution; the other is willfully subjecting any 
inhabitant to different punishments on account of his color or race, 
than are prescribed for the punishment of citizens. The meager 
legislative history of the section supports this conclusion.10

So interpreted § 20 applies to deprivation of the constitutional 
rights of qualified voters to choose representatives in Congress. The 
generality of the section made applicable as it is to deprivations of 
any constitutional right, does not obscure its meaning or impair its 
force within the scope of its application, which is restricted by its 
terms to deprivations which are willfully inflicted by those acting 
under color of any law, statute and the like.
10 The precursor of $ 20 was 5 2 of the Civil Eights Act of April 9, 1866, 14 

Stat. 27, which reads:
‘ ‘ That any person who, under color of any law, statute, ordinance, regula­

tion, or custom shall subject, or cause to be subjected, any inhabitant of any 
State or Territory to the deprivation of any right secured or protected by this 
act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servi 
tude, except as a punishment for crime whereof the party shall have eon 
duly convicted, or by reason of his color or race, than is prescribed ror 
punishment of white persons, shall be deemed guilty of a misdemeanor, ana, 
on conviction shall be punished by fine. . .
This section, so far as now material, was in substance the same as § 2 

cept that the qualifying reference to differences in punishment ma e! no 
tion of alienage, the reference being to “different punishment on aeeoim 
such person having at any time been held in a condition of slave y
voluntary servitude”. qoa, theSenator Trumbull, the putative author of S. 61, 39th Cong., Is ®H{tee Civil Eights Bill of 1866, and Chairman of the Senate Judiciary Co f 
which reported the bill, in explaining it stated that the bill was to p



United States vs. Classic et al. 17

We do not discuss the application of § 20 to deprivations of the 
right to equal protection of the laws guaranteed by the Fourteenth 
Amendment, a point apparently raised and discussed for the first 
time in the Government’s brief in this Court. The point was not 
specially considered or decided by the court below, and has not been 
assigned as error by the Government. Since the indictment on its 
face does not purport to charge a deprivation of equal protection to 
voters or candidates, we are not called upon to construe the indict­
ment in order to raise a question of statutory validity or construc­
tion which we are alone authorized to review upon this appeal.

Reversed.
The C h ie f  Justice took no part in the consideration or decision 

of this case.
all persons in the United States in their civil rights and furnishes the means of their vindication. . . .” Cong. Globe, 39th Cong., 1st Sess., p. 211. He
also declared, “The bill applies to white men as well as black men:’’. Cong. 
Globe, 39th Cong., 1st Sess., p. 599. Opponents of the bill agreed with this 
construction of the first clause of the section, declaring that it referred to the 
deprivation of constitutional rights of all inhabitants of the states of every race and color. Pp. 598, 601.
On February 24, 1870, Senator Stewart of Nevada, introduced S. 365, 41st Cong., 2d Sess., $ 2 of whieh read:
“That any person who under color of any law, statute, ordinance, regulation 

or custom shall subject, or cause to be subjected any inhabitant or any State 
or Territory to the deprivation of any rights secured or protected by this act, 
or to different punishment, pains, or penalties on account of such person being 
an alien, or by reason of his color or race, than is prescribed for the punish­
ment of white persons, shall be deemed guilty of a misdemeanor. . . .”
In explaining the bill he declared, Cong. Globe, 41st Cong., 2d Sess., p. 1536, 
that the purpose of the bill was to extend its benefits to aliens, saying, “It 
extends the operation of the Civil Rights Bill, whieh is well known in the 
Senate and to the country, to all persons within the jurisdiction of the United 
States.” The Committee reported out a substitute bill to H. R. 1293, to 
which S. 365 was added as an amendment. As so amended the bill when 
adopted became the present § 20 of the Criminal Code whieh read exactly as 
did § 2 of the Civil Rights Act, except that the word ‘ ‘ aliens ’ ’ was added and 
the word “citizens” was substituted for the phrase “white persons”.
While the legislative history indicates that the immediate occasion for the 

adoption of § 20, like the Fourteenth Amendment itself, was the more ade­
quate protection of the colored race and their civil rights, it shows that neither 
was restricted to that purpose and that the first clause of § 20 was intended to 
protect the constitutional rights of all inhabitants of the states. H. R. 1293, 
41st Cong., 2d Sess., which was later amended in the Senate to include § 2 of 
8. 365 as § 17 of the bill as it passed, now § 20 of the Criminal Code, was orig­
inally entitled “A bill to enforce the right of citizens of the United States to 
vote in the several states of this Union who have hitherto been denied that 
right on account of Tace, color or previous condition of servitude ’ ’. When the 
bill came to the Senate its title was amended and adopted to read, ‘ ‘ A bill to 
enforce the right of citizens of the United States to vote in the several states 
of this Union and for other purposes. ’ ’





SUPREME COURT OF THE UNITED STATES
No. 618.— October Term, 1940.

The United States of America, Ap­
pellant, 

vs.
Patrick B. Classic, John A. Morris,

Bernard W. Yeager, Jr., William 
Schumacher, and J. J. Fleddermann.

[May 26, 1941.]

Mr. Justice Douglas, dissenting.

Free and honest elections are the very foundation of our repub­
lican form of government. Hence any attempt to defile the sanc­
tity of the ballot cannot be viewed with equanimity. As stated by 
Mr. Justice Miller in Ex parte Yarbrough, 110 U. S. 651, 666, “ the 
temptations to control these elections by violence and corruption”  
have been a constant source of danger in the history of all republics. 
The acts here charged, if proven, are of a kind which carries that 
threat and are highly offensive. Since they corrupt the process of 
Congressional elections, they transcend mere local concern and ex­
tend a contaminating influence into the national domain.

I think Congress has ample power to deal with them. That is to 
say I disagree with Newberry v. United States, 256 U. S. 232, to 
the extent that it holds that Congress has no power to control pri­
mary elections. Art. I, § 2 of the Constitution provides that “ The 
House of Eepresentatives shall be composed of Members chosen 
every second Year by the People of the several States.”  Art I, 
§ 4 provides that ‘ ‘ The Times, Places and Manner of holding Elec­
tions for Senators and Representatives, shall be prescribed in each 
State by the Legislature thereof; but the Congress may at any time 
by Law make or alter such Regulations, except as to the Places of 
chusing Senators. ”  And Art. I, § 8, clause 18 gives Congress the 
power ‘ ‘ To make all Laws which shall be necessary and proper for 
carrying into Execution the foregoing Powers, and all other Powers 
rested by this Constitution in the Government of the United States, 
°r m any Department or Officer thereof.”  Those sections are an

Appeal from the District 
Court of the United 
States for the Eastern 
District of Louisiana.



2 United States vs. Classic et al.

arsenal of power ample to protect Congressional elections from any 
and all forms of pollution. The fact that a particular form of 
pollution has only an indirect effect on the final election is imma­
terial. The fact that it occurs in a primary election or nominating 
convention is likewise irrelevant. The important consideration is 
that the Constitution should be interpreted broadly so as to give 
to the representatives of a free people abundant power to deal 
with all the exigencies of the electoral process. It means that the 
Constitution should be read so as to give Congress an expansive 
implied power to place beyond the pale acts which, in their direct 
or indirect effect, impair the integrity of Congressional elections. 
For when corruption enters, the election is no longer free, the 
choice of the people is affected. To hold that Congress is powerless 
to control these primaries would indeed be a narrow construction of 
the Constitution inconsistent with the view that that instrument of 
government was designed not only for contemporary needs but foi 
the vicissitudes of time.

:So I agree with most of the views expressed in the opinion of the 
Court. And it is with diffidence that I dissent from the result there 
reached.

The disagreement centers on the meaning of § 19 of the Criminal 
Code which protects every right secured by the Constitution. The 
right to vote at a final Congressional election and the right to have 
one’s vote counted in such an election have been held to be protected 
by § 19. Ex parte Yarbrough, supra; United States v. Mosley, 208 
U. S. 383. Yet I do not think that the principles of those cases 
should be, or properly can be, expended to primary elections. To 
sustain this indictment we must so extend them. But when we do, 
we enter perilous territory.

We enter perilous territory because, as stated in United States 
v. Gradwell, 243 U. S. 476, 485, there is no common law offense 
against the United States; “ the legislative authority of the Union 
must first make an act a crime, affix a punishment to it, and declare 
the Court that shall have jurisdiction of the offence.”  United 
States v. Hudson, 7 Cranch 32, 34. If a person is to be convicted 
of a crime, the offense must be clearly and plainly embraced with™ 
the statute. As stated by Chief Justice Marshall in United State? 
v. Wiltberger, 5 Wheat. 76, 105, “ probability is not a guide whic 
a court, in construing a penal statute, can safely take. It is one



United States vs. Classic et al. 3
thing to allow wide and generous scope to the express and implied 
powers of Congress; it is distinctly another to read into the vague 
and general language of an act of Congress specifications of crimes. 
We should ever be mindful that “ before a man can be punished, 
his case must be plainly and unmistakably within the statute.”  
United States v. Lacher, 134 U. S. 624, 628. That admonition is 
reemphasized here by the fact that § 19 imposes not only a fine of 
$5,000 and ten years in prison but also makes him who is convicted 
“ ineligible to any office, or place of honor, profit, or trust created 
by the Constitution or laws of the United States.”  It is not enough 
for us to find in the vague penumbra of a statute some offense about 
which Congress could have legislated and then to particularize it 
as a crime because it is highly offensive. Cf. James v. Bowman, 190 
U. S. 127. Civil liberties are too dear to permit conviction for 
crimes which are only implied and which can be spelled out only 
by adding inference to inference.

See. 19 does not purport to be an exercise by Congress of its 
power to regulate primaries. It merely penalizes conspiracies “ to 
injure, oppress, threaten, or intimidate any citizen in the free exer­
cise or enjoyment of any right or privilege secured to him by the 
Constitution or laws of the United States” . Thus, it does no more 
than refer us to the Constitution1 for the purpose of determining 
whether or not the right to vote in a primary is there secured. 
'Hence we must do more than find in the Constitution the power of 
Congress to afford that protection. We must find that protection 
on the face of the Constitution itself. That is to say, we must in 
view of the wording of § 19 read the relevant provisions of the 
Constitution for the purposes of this case through the window of 
a criminal statute.

There can be put to one side cases where state election officials 
deprive negro citizens of their right to vote at a general election 
(Guinn v. United States, 238 U. S. 347), or at a primary. Nixon 
v. Herndon, 273 U. S. 536; Nixon v. Condon, 286 U. S. 73. Dis­
crimination on the basis of race or color is plainly outlawed by the 
Fourteenth Amendment. Since the constitutional mandate is 
plain, there is no reason why § 19 or § 20 should not be applicable. 
But the situation here is quite different. When we turn to the

1 While 5 19 also refers to ‘ ‘ laws of the United States ” , § 19 and § 20 are 
the only statutes direetly in point.



4 United States vs. Classic et al.

constitutional provisions relevant to this case we find no such un­
ambiguous mandate.

Art. I, § 4 specifies the machinery whereby the times, places and 
manner of holding elections shall be established and controlled. 
Art. I, § 2 provides that representatives shall be “ chosen” by the 
people. But for purposes of the criminal law as contrasted to the 
interpretation of the Constitution as the source of the implied 
power of Congress, I do not think that those provisions in absence 
of specific legislation by Congress protect the primary election or 
the nominating convention. While they protect the right to vote 
and the right to have one’s vote counted at the final election as 
held in the Yarbrough and Mosley cases, they certainly do not perse 
extend to all acts which in their indirect or incidental effect 
restrain, restrict, or interfere with that choice. Bribery of voters 
at a general election certainly is an interference with that freedom 
of choice. It is a corruptive influence which for its impact on the 
election process is as intimate and direct as the acts charged in 
this indictment. And Congress has ample power to deal with it. 
But this Court in United States v. Bathgate, 246 U. S. 220, by a 
unanimous vote, held that conspiracies to bribe voters at a general 
election -were not covered by § 19. While the conclusion in that 
case may be reconciled with the results in the Yarbrough and 
Mosley cases on the ground that the right to vote at a general elec­
tion is personal while the bribery of voters only indirectly affects 
that personal right, that distinction is not of aid here. For the 
failure to count votes cast at a primary lias by the same token only 
an indirect effect on the voting at the general election. In terms 
of causal effect tampering with the primary vote may be as im­
portant on the outcome of the general election as bribery of voters 
at the general election itself. Certainly from the viewpoint of 
the individual voter there is as much a dilution of his vote m the 
one ease as in the other. So, in light of the Mosley and Bathgate 
cases, the test under § 19 is not whether the acts in question cons l- 
tute an interference with the effective choice of the voters. lS 
whether the voters are deprived of their votes in the general e ec- 
tion. Such a test comports with the standards for construction o a 
criminal law, since it restricts § 19 to protection of the rights P am 
and directly guaranteed by the Constitution. Any other e  ̂
tails an inquiry into the indirect or incidental effect on the gen 
election of the acts done. But in view of the generality o



N. A. A. C. R
m  FIFTH AVENUE

United States vs. Classic et al/O RK , N. V.5
words employed such a test would be incompatible with the criteria 
appropriate for a criminal case.

The Mosley case, in my view, went to the verge when it held that 
§ 19 and the relevant constitutional provisions made it a crime to 
fail to count votes cast at a general election. That Congress in­
tended § 19 to have that effect was none too clear. The dissent­
ing opinion of Mr. Justice Lamar in that case points out that § 19 
was originally part of the Enforcement Act of May 31, 1870, c. 114, 
§ 6; 16 Stat. 140. Under another section of that act (§4), which was 
repealed by the Act of February 8, 1894 (28 Stat. 36) the crime 
charged in the Mosley case would have been punishable by a fine of 
not less than $500 and imprisonment for 12 months.2 Under § 19 
it carried, as it still does, a penalty of $5000 and ten years in prison. 
The Committee Report (H. Rep. No. 18, 53d Cong., 1st Sess.) which 
recommended the repeal of other sections clearly indicated an 
intent to remove the hand of the Federal Government from such 
elections and to restore their conduct and policing to the states. As 
the Report stated (p. 7) : “ Let every trace of the reconstruction 
measures be wiped from the statute books; let the States of this 
great Union understand that the elections are in their own hands, 
and if there be fraud, coercion, or force used they will be the first 
to feel it. Responding to a universal sentiment throughout the 
country for greater purity in elections many of our States have 
enacted laws to protect the voter and to purify the ballot. These, 
under the guidance of State officers, have worked efficiently, satis­
factorily, and beneficently; and if these Federal statutes are re­
pealed that sentiment will receive an impetus which, if the cause 
still exists, will carry such enactments in every State in the Union.”  
In view of this broad, comprehensive program of repeal it is not 
easy to conclude that the general language of § 19 which was not 
repealed not only continued in effect much which had been re-

- See. 5506, Rev. Stat.: ‘ ‘ Every person who, by any unlawful means,
flinders, delays, prevents, or obstructs, or combines and confederates with 
others to hinder, delay, prevent, or obstruct, any citizen from doing any 
act required to be done to qualify him to vote, or from voting at any 
e ection . . . shall be fined not less than five hundred dollars, or be
imprisoned not less than one month nor more than one year, or be punished 
7 both such fine and imprisonment.”  See. 5511 provided: ‘ ‘ I f, at any

e ection for Representative or Delegate in Congress, any person . . . know­
ing y receives the vote of any person not entitled to vote, or refuses to receive 
ie vote of any person entitled to vote . . .  he shall be punished by a fine

not more than five hundred dollars, or by imprisonment not more than three 
years, or by both



6 United States vs. Classic et al.

pealed but also upped the penalties for certain offenses which had 
been explicitly covered by one of the repealed sections. Mr. Jus­
tice Holmes, writing for the majority in the Mosley case, found in 
the legislative and historical setting of § 19 and in its revised form 
a Congressional interpretation which, if § 19 were taken at its face 
value, was thought to afford voters in final Congressional elections 
general protection. And that view is a tenable one since § 19 
originally was part of an Act regulating general elections and since 
the acts charged had a direct rather than an indirect effect on the 
right to vote at a general election.

But as stated by a unanimous court in United States v. Gradwell, 
supra, p. 486, the Mosley case “ falls far short”  of making §19 
“ applicable to the conduct of a state nominating primary” . Indeed, 
Mr. Justice Holmes, the author of the Mosley opinion, joined with 
Mr. Justice McReynolds in the Newlerry case in his view that 
Congress had no authority under Art. I, § 4 of the Constitution 
to legislate on primaries. When § 19 was part of the Act of May 31, 
1870, it certainly would never have been contended that it embraced 
primaries, for they were hardly known at that time.3 It is true 
that “ even a criminal statute embraces everything which subse­
quently falls within its scope.”  Browder v. United States, 312 U. S. 
335, 340. Yet the attempt to bring under § 19 offenses “ committed 
in the conduct of primary elections or nominating caucuses or con­
ventions”  was rejected in the Gradwell case, where this Court said 
that in absence of legislation by Congress on the subject of pri­
maries it is not for the courts “ to attempt to supply it by stretch­
ing old statutes to new uses, to which they are not adapted and 
for which they were not intended. . . . the section of the Crim­
inal Code relied upon, originally enacted for the protection of the 
civil rights of the then lately enfranchised negro, cannot be ex­
tended so as to make it an agency for enforcing a state primary 
law.”  243 U. S. pp. 488-489. The fact that primaries were hardly 
known when § 19 was enacted, the fact that it was part of a legis 
lative program governing general elections not primary elections, 
the fact that it has been in nowise implemented by legislation 
directed at primaries give credence to the unanimous view in 1 e 
Gradwell case that § 19 has not by the mere passage of time tajffl

3Merriam & Overaeker, Primary Elections (1928) 
American Parties & Elections (1927) cli. X ; Brooks,

chs. I-III, Vj.Sadt 
Political Parties *

Electoral Problems (1933) ch. X.



United States vs. Classic et al. 7

on a new and broadened meaning. At least it seems plain that 
the difficulties of applying the historical reason adduced by Mr. 
Justice Holmes in the Mosley ease to bring general elections within 
§ 19 are so great in case of primaries that we have left the safety- 
zone of interpretation of criminal statutes when we sustain this 
indictment. It is one thing to say, as in the Mosley case, that 
Congress was legislating as respects general elections when it 
passed § 19. That was the fact. It is quite another thing to say 
that Congress by leaving § 19 unmolested for some seventy years 
has legislated unwittingly on primaries. Sec. 19 was never part 
of an act of Congress directed towards primaries. That was not 
its original frame of reference. Therefore, unlike the Mosley case, 
it cannot be said here that § 19 still covers primaries because it 
was once an integral part of primary legislation.

Furthermore, the fact that Congress has legislated only sparingly 
and at infrequent intervals even on the subject of general elections 
(United States v. Gradwell, supra) should make us hesitate to con­
clude that by mere inaction Congress has taken the greater step, 
entered the field of primaries, and gone further than any announced 
legislative program has indicated. The acts here charged consti­
tute crimes under the Louisiana statute. La. Act No. 46, Reg. Sess. 
1940, § 89. In absence of specific Congressional action we should 
assume that Congress has left the control of primaries and nominat­
ing conventions to the states—an assumption plainly in line with 
the Committee Report, quoted above, recommending the repeal 
of portions of the Enforcement Act of May 31, 1870 so as to place 
the details of elections in state hands. There is no ground for infer­
ence in subsequent legislative history that Congress has departed 
from that policy by superimposing its own primary penal law on the 
primary penal laws of the states. Rather, Congress has been fairly 
consistent in recognizing state autonomy in the field of elections. To 
be sure, it has occasionally legislated on primaries.4 But even when 
dealing specifically with the nominating process, it has never made 
acts of the kind here in question a crime. In this connection it should 
be noted that the bill which became the Hatch Act (53 Stat. 1147; 
18 IJ. S. C. § 61) contained a section which made it unlawful “ for 
any person to intimidate, threaten, or coerce, or to attempt to intim-

4 Act of June 
August 19, 1911, 
Stat. 1013.

25, 1910, c. 392, 36 Stat. 822, as amended by the Act of 
e. 33, 37 Stat. 25; Act of October 16, 1918, e. 187, 40



8 United States vs. Classic et al.

idate, threaten, or coerce, any other person for the purpose of in­
terfering with the right of such other person to vote or to vote as 
he may choose, or of causing such other person to vote for or not 
to vote for any candidate for the nomination of any party as its 
candidate”  for various federal offices including representatives 
“ at any primary or nominating convention held solely or in part” 
for that purpose. This was stricken in the Senate. 84 Cong. Kec., 
pt. 4, 76th Cong., 1st Sess., p. 4191. That section would have ex­
tended the same protection to the primary and nominating con­
vention as § 1 of the Hatch Act5 extends to the general election. 
The Senate, however, refused to do so. Yet this Court now holds 
that § 19 has protected the primary vote all along and that it 
covers conspiracies to do the precise thing on which Congress re­
fused to legislate in 1939. The hesitation on the part of Congress 
through the years to enter the primary field, its refusal to do so6 
in 1939, and the restricted scope of such primary laws as it has 
passed should be ample evidence that this Court is legislating when 
it takes the initiative in extending § 19 to primaries.

We should adhere to the strict construction given to §19 by a 
unanimous court in United States v. Bathgate, supra, p. 226, where 
it was said : ‘ ‘ Section 19, Criminal Code, of course, now has the same 
meaning as when first enacted . . . and considering the policy of 
Congress not to interfere with elections within a State except by 
clear and specific provisions, together with the rule respecting con­
struction of criminal statutes, we cannot think it was intended to 
apply to conspiracies to bribe voters. ’ ’ That leads to the conclusion 
that § 19 and the relevant constitutional provisions should be read so 
as to exclude all acts which do not have the direct effect of de­
priving voters of their right to vote at general elections. That

5 ‘ ‘ That it shall be unlawful for any person to intimidate, threaten, or coerce, 
or to attempt to intimidate, threaten, or coerce, any other person for the purpose 
of interfering with the right of such other person to vote or to vote as he may 
choose, or of causing such other person to vote for, or not to vote for, any 
candidate for the office of President, Vice President, Presidential elector, 
Member of the Senate, or Member of the House of Representatives at any 
election held solely or in part for the purpose of selecting a President, a Vice 
President, a Presidential elector, or any Member of the Senate or any Member 
of the House of Representatives, Delegates or Commissioners from the Terri­
tories and insular possessions. ’ ’

6 Sec. 2 of the Hatch Act, however, does make unlawful certain acts of ad­
ministrative employees even in connection with the nominations for certain 
federal offices. And see 54 Stat. 767, No. 753, eh. 640, 76th Cong., 3d “ess. 
As to the power of Congress over employees or officers of the government see 
United States v. Wurzbach, 280 U. S. 396.



United States vs. Classic et al. 9

view has received tacit recognition by Congress. For the history 
of legislation governing Federal elections shows that the occasional 
Acts of Congress7 on the subject have been primarily directed 
towards supplying detailed regulations designed to protect the 
individual’s constitutional right to vote against pollution and 
corruption. Those laws, the latest of which is § 1 of the Hatch 
Act, are ample recognition by Congress itself that specific legis­
lation is necessary in order to protect the electoral process against 
the wide variety of acts which in their indirect or incidental effect 
interfere with the voter’s freedom of choice and corrupt the elec­
toral process. They are evidence that detailed regulations are 
essential in order to reach acts which do not directly interfere with 
the voting privilege. They are inconsistent with the notions in 
the opinion of the Court that the Constitution unaided by definite 
supplementary legislation protects the methods by which party 
candidates are nominated.

That § 19 lacks the requisite specificity necessary for inclusion 
of acts which interfere with the nomination of party candidates is 
reemphasized by the test here employed. The opinion of the Court 
stresses, as does the indictment, that the winner of the Democratic 
primary in Louisiana invariably carries the general election. It is 
also emphasized that a candidate defeated in the Louisiana primaries 
cannot be a candidate at the general election. Hence, it is argued 
that interference with the right to vote in such a primary is “ as 
a matter of law and in fact an interference with the effective choice 
of the voters at the only stage of the election procedure when their 
choice is of significance,”  and that the “ primary in Louisiana is 
an integral part of the procedure for the popular choice”  of repre­
sentatives. By that means the Gradwell case is apparently dis­
tinguished. But I do not think it is a valid distinction for the 
purposes of this case.

One of the indictments in the Gradwell case charged that the 
defendants conspired to procure one thousand unqualified persons 
to vote in a West Virginia primary for the nomination of a 
United States Senator. This Court, by a unanimous vote, affirmed 
the judgment which sustained a demurrer to that indictment. The 
Court specifically reserved the question as to whether a “ primary

7 See for example, Act of May 31, 1870, 16 Stat. 140; Act of July 14, 1870, 
16 Stat. 254, 255-256; Act of Feb. 28, 1871, 16 Stat. 433; Act of June 25, 
1910, 36 Stat. 822; Act of August 19, 1911, 37 Stat. 25; Act of August 23, 
1912, 37 Stat. 360; Act of October 16, 1918, 40 Stat. 1013; Federal Corrupt 
Practices Act, 1925, 43 Stat. 1070; Hatch Act, August 2, 1939, 53 Stat. 1147.



1 0 United States vs. Classic et al.

should be treated as an election within the meaning of the Consti­
tution” . But it went on to say that even assuming it were, certain 
‘ ‘ strikingly unusual features”  of the particular primary precluded 
such a holding in that case. It noted that candidates of certain 
parties were excluded from the primary and that even candidates 
who were defeated at the primary could on certain conditions be 
nominated for the general election. It therefore concluded that 
whatever power Congress might have to control such primaries, it 
had not done so by § 19.

If the Gradwell case is to survive, as I think it should, we have 
therefore this rather curious situation. Primaries in states where the 
winner invariably carries the general election are protected by § 19 
and the Constitution, even though such primaries are not by law an 
integral part of the election process. Primaries in states where the 
successful candidate never wins, seldom wins, or may not win in the 
general election are not so protected, unless perchance state law 
makes such primaries an integral part of the election process. Con­
gress having a broad control over primaries might conceivably draw 
such distinctions in a penal code. But for us to draw them under 
§ 19 is quite another matter. For we must go outside the statute, ex­
amine local law and local customs, and then on the basis of the legal 
or practical importance of a particular primary interpret the vague 
language of § 19 in the light of the significance of the acts done. 
The result is to make refined and nice distinctions which Congress 
certainly has not made, to create unevenness in the application of 
§ 19 among the various states, and to make the existence of a crime 
depend, not on the plain meaning of words employed interpreted in 
light of the legislative history of the statute, but on the result of re­
search into local law or local practices. Unless Congress has ex­
plicitly made a crime dependent on such facts, we should not under­
take to do so. Such procedure does not comport with the strict 
standards essential for the interpretation of a criminal law. The 
necessity of resorting to such a circuitous route is sufficient evidence 
to me that we are performing a legislative function in finding here a 
definition of a crime which will sustain this indictment. A crime, 
no matter how offensive, should not be spelled out from such vague 
inferences.

Mr. Justice B l a c k  and Mr. Justice M u r p h y  join in this dissent.









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