Nixon v. Condon; Lane v. Wilson; U.S. v. Classic Records and Briefs
Public Court Documents
March 15, 1929 - May 26, 1941

Cite this item
-
Brief Collection, LDF Court Filings. Nixon v. Condon; Lane v. Wilson; U.S. v. Classic Records and Briefs, 1929. 85173072-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/fe86716b-f312-41b5-ab1b-b908ad8c30da/nixon-v-condon-lane-v-wilson-us-v-classic-records-and-briefs. Accessed July 30, 2025.
Copied!
N .A .A .a P . RECORDS BRIEFS \ 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. .. p X P • I 'V 'P 'P - 'i - . . r v . . . -A :- * :.... ;> ■ - ■ . ■ * ! , 1. ’ P >f-•’ ' " t i ^ ; ; ■ ■. ■ ■ ■ ■ ■:m : : ■ ■X , i,f ••■'"■ 4 ,v v̂ -w. ■ af&tts*? - . ' . * - , < ‘ , -i • ■■'• v.4p44 '' •-.. .•' '• ; a P 'T ". '--X •a ■: k ■ c . -! ';•-••• - , ;• • • •/* ; 3 ̂ . c,r> fpv ■ jpye p Mp ® ■ :vp | p ■ X § P ' â P P I -• I 1 S 1 I 1 i i i p X ,pX;, ■1P; vPvT.-;. :> ' .? •> • ,^V: H $$ ' P*■■ ' ;V-"- ■. . . ’ :-f . /'-•i . ... ■;. ^ r '- v . . . . • >. - r. <■ *■££&} £•’ • . P P : ;.: 4 ' P : A l p & i ...2............ s............slii .. : v / * * ' . • M i l w -p-p S i ,p p -v pxpppy . , P ^ X X ' p p A ' P .':■■■ P 4 ' >,• :: : . \ P , , / P . I ^ p P p C p , : • ■ :, i> ‘ • ' ,: - • ■:>‘ ' ■ '"■ •',w - P!!& ) p P !r ■ W«‘ S | ^ ^ ' k r | Pvpy. 'xfcfr * $ P I v#Jv /̂■V • -» P .’ XifW-m :J . :•$ ' ■ 'P 'P v> '> v '••;•' , - l • * -, - , •]u 'v'/ v ;■« ,:;'7 d t ■’ ' ■■'■■:'. " j : ? ' , :■ f M - i . «cp>: •.'" ’p '” y.XX/; p p4y|p' • P x .P , x p *; •• •-,'>-•■ P ‘•3tê«2®5 .P 4-1 ' V § '^ r' J/ • ' . p p , « ' • p : S'p::,'.': (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. , *■ & , % 4 > i ! ' ' f ■4- ft ° ' V e . S . U P T O N P R I N T I N G C O . . N E W O R L E A N S — 6 7 9 4 3 \\