Probable Jurisdiction Noted June 22, 1964. See 84 S.Ct. 1920.
CAMERON, Circuit Judge:
In this action, the "Indestructible Union" member of the partnership which constitutes the government of this country makes a frontal attack upon the other member, the "Indestructible State" of Mississippi, seeking to enjoin the enforcement of certain laws of the State defining the qualifications of the "electors" who shall vote in elections for president and vice president of the United States and members of the Congress. The State of Mississippi and its people have, in the Constitution of 1890 and thereafter, enacted constitutional and statutory provisions covering the whole field of choosing of such "electors". The United States seeks to strike down some of these enactments upon the claim that they violate the Fourteenth and Fifteenth Amendments of the Constitution, in that they deny certain rights to Negroes because of their race, color or previous condition of servitude. We hold that, from the face of the pleadings, the effort to strike them down may not succeed.
The United States of America filed a complaint invoking the jurisdiction of this Court under the provisions of 42 U.S.C. § 1971(d),
The complaint is filed under the authority of 42 U.S.C. § 1971(a)-(c).
Each defendant has moved to dismiss the complaint for failure to state a claim on which relief could be granted and the defendant Registrars of voters who are non-residents of this district have moved to dismiss for want of venue jurisdiction; the defendant Registrar of Claiborne County has moved for dismissal or for transfer to the division having venue jurisdiction of her county. Each defendant Registrar has also moved for a severance and separate trial. No supporting or counter affidavits were or have been filed. Answers have been filed by all defendants.
It is elementary that in ruling on the motions to dismiss, the Court
The Complaint further alleges the following as facts: All registrars of voters in the State of Mississippi since at least 1892 have been white citizens. In the counties of the defendant registrars, the statistics on voting age population of Negro and white persons and the approximate voter registration of each race are as follows:
WHITE NEGROVoting Age Registration Voting Age Registration Population Population Amite 4449 3295 2560 1 Coahoma 8708 8376 14604 1371 Claiborne 1688 1440 3969 138 Lowndes 16460 5869 8362 63 LeFlore 10274 9803 13567 258 Pike 12163 9989 6936 124
At the time of the adoption of the Mississippi Constitution of 1890 there were substantially more Negroes than whites in Mississippi. By 1899, approximately 122,000 or 82% of the white males of voting age and 18,000 or 9% of the Negro males of voting age were registered to vote in Mississippi. Since 1899, a substantial majority of white persons reaching voting age in Mississippi have become registered voters. The percentage of Negroes registered to vote has declined.
During the period from 1899 to approximately 1952 Negroes were not allowed to register to vote; literate Negroes were required to interpret sections of the Mississippi Constitution; and Negroes were excluded from Democratic primary elections. During this time, victory in the Democratic primary in Mississippi was tantamount to election. By 1951, a much higher percentage of the Negroes of voting age in Mississippi were literate than in 1890.
In 1952, a proposed amendment to Section 244 of the Constitution, providing that in the future, it would be prerequisite to becoming an elector that a person be able to read and write any section of
In 1954, at least 450,000 or 63 per cent of the white persons of voting age in Mississippi were registered to vote. In 1954, approximately 22,000 or five per cent of the Negroes of voting age in Mississippi were registered to vote.
In 1954, after the Supreme Court had declared state operation of racially segregated schools unconstitutional, white citizens councils — not parties to this action —were formed in Mississippi. The purpose of these organizations was the maintenance of racial segregation and white supremacy in Mississippi. The first statewide project undertaken by these organizations was the attempt to induce the white voters of Mississippi to adopt the proposed amendment to Section 244 of the Mississippi Constitution of 1890.
Of the approximately 472,000 registered voters in Mississippi who were eligible to vote on this proposed amendment in 1954, about ninety-five per cent were white; fewer than five per cent were Negro. The amendment was adopted in a state where the public education facilities were and are racially segregated, and where such facilities provided for Negroes were and are inferior to those provided for white persons.
Since 1955, the defendant registrars, as well as many other registrars in Mississippi have enforced the requirements of Section 244, as amended, when Negroes have attempted to register to vote, by requiring Negroes to interpret sections of the Mississippi Constitution and to demonstrate their understanding of the duties and obligations of citizenship on the form prescribed by the State Board of Election Commissioners.
In 1960, approximately 500,000 or 67 per cent of the white persons of voting age in Mississippi, and approximately 20,000 to 25,000, or five per cent of the Negroes of voting age were registered to vote.
Of the approximately 525,000 registered voters in Mississippi who were eligible to vote on the proposed amendment adding Section 241-A to the Mississippi Constitution, about 95 per cent were white; fewer than 5 per cent were Negro. The amendment was adopted in a state where all state officials were white.
The suits filed by the United States against several county voter registrars and the action taken by the Court of Appeals in issuing an injunction against T. C. Lynd, the Circuit Clerk and Registrar of Forrest County, Mississippi, concerning voter registration discrimination, were matters of common knowledge throughout the State of Mississippi.
Some registration application forms, including some forms received by defendant H. K. Whittington in Amite County, Mississippi, have been destroyed.
In late 1961 and early 1962, Negro citizens and organizations conducted a voter registration drive in Mississippi for the purpose of increasing the number of Negroes eligible to vote in the 1962 Mississippi primary elections. For the first time in many years Negroes were candidates for the office of representative in the Congress of the United States. These facts were widely publicized and were matters of common knowledge throughout Mississippi.
In support of its motion to dismiss, the State of Mississippi contends that Section 601(b) of the Civil Rights Act
In Ex parte Virginia,
This reasoning from Ex parte Virginia has been recently approved in Cooper v. Aaron;
In Ex parte Young,
Although the cases relied on principally relate to instances in which the Eleventh Amendment was invoked as a bar to the action brought, the State of Mississippi contends that it does not rely on the Eleventh Amendment here. It rather asserts that the legal reasoning which allows individuals to pursue alleged violations of Fourteenth and Fifteenth Amendment rights caused by "State Action," despite the provisions of the Eleventh Amendment, is equally applicable to demonstrate the non-liability of the State in the present suit.
In the latest and only comment on the subject, the Supreme Court of the United States expressly pretermitted any decision on the constitutionality of Section 601(b) in its per curiam opinion in United States v. Alabama.
Obviously these tribunals consider the question still an open and undecided one.
The plaintiff contends that Section 601(b) authorizes its suit against the State and cites in support thereof the Atkins case and the prior Fifth Circuit decisions of United States v. Lynd,
Since it is clear from United States v. Alabama, Note 18, supra, and United States v. Atkins, Note 19, supra, that neither the Supreme Court nor the Court of the Fifth Circuit considers that the constitutionality of § 601(b) has been passed upon and that both courts consider the question open, it is desirable to pause here to demonstrate that neither Lynd nor Dogan passed upon the constitutionality of the statute in any legal way.
The hasty and confused handling of the two Lynd cases by the Court of Appeals
The first case commenced against Lynd — but the second case decided — was brought under Title III, Civil Rights Act, 1960, 42 U.S.C. § 1974d, and involved an effort by Kennedy to examine and copy his records.
This case, No. 1604, in some way found its way to the Court of Appeals and was decided by a panel composed of Judges Rives, Brown and Wisdom, the opinion by Judge Brown. See Kennedy v. Lynd, 306 F.2d 222. The opinion covered several other cases from the State of Louisiana and is specifically dealt with beginning at page 227 under the heading "No. 19636, Lynd, Registrar Forrest County, Mississippi." It was there that the dictum was first expressed that "Relief under § 1971(c) is not confined to named individual voter officials but extends as far as the sovereign State itself." The opinion purports to lay down a broad sweep of general rules governing the right of the United States to examine and copy records.
It is plain that the above quoted statement from page 228 of the Report is wholly without basis. Neither the United States nor the State of Mississippi was a party to that civil action. The appeal was from the action of the court below in passing the case to the files — certainly a non-appealable action which could be set aside by either party at any time upon a showing that the reason for putting the case on the inactive list was no longer in existence. The decision is bottomed by the author on United States v. Wood, 5 Cir., 1961, 295 F.2d 772, 777. An examination of that report will reveal that it did not involve any of the questions presented by Kennedy v. Lynd, and the statement that the sovereign State was within the ambit of the relief accorded by the statutes is without legal basis.
The second case commenced against Lynd — but the first decided — was brought pursuant to 42 U.S.C. § 1971(c) and involved a discrimination suit by the United States against Lynd and the State of Mississippi.
This case had never been decided by the District Court. The State of Mississippi was joined as a party defendant, as permitted by the explicit terms of the Act. The only time we find the State mentioned in the opinion by the Court of Appeals is at page 823 of 301 F.2d, where it rejected the contention that the Court of Appeals should not grant a temporary injunction "because the State has not filed its answer and has not put on its proof."
The trial court had ordered the United States to furnish the names of all persons whom it intended to use as witnesses to show discrimination. The Government responded by filing an amended complaint, to which it attached an appendix giving the names of its witnesses. A number of witnesses were called whose names did not appear on the list, and the defendants objected to the testimony as being outside the scope of the pleadings. The District Court permitted the United States to amend orally the amended complaint, with the condition, however, that defendants could defer cross-examination of the surprise witnesses for a period of
The United States rested its case, but the defendants duly reserved their right at a later time to put on their testimony. At the conclusion of the three-day hearing, the District Court ruled, upon application of the defendants, that all questions before it, including motion for preliminary injunction, would be deferred until after the thirty-day period, so that the defendants could prepare to cross-examine the witnesses whose names had been omitted from the list.
The District Court did not enter any order at all, and did not make any findings of fact or conclusions of law, and no notice of appeal was given, as provided by the Federal Rules of Civil Procedure. The United States adopted the expedient of going direct to the Court of Appeals for the Fifth Circuit, there filing a motion for an injunction pending appeal. The case was heard at an emergency hearing in Houston, Texas.
Neither in the District Court nor in the Court of Appeals was the question of the suability of the State of Mississippi mentioned in the briefs and, as stated, the opinion of the Court of Appeals did not mention the existence of such a question. The sole specification of error relied upon by the United States alleged that the District Court erred in not granting the temporary injunction prayed for.
It is clear, therefore, that the question of the constitutionality or meaning of § 601(b) never became an issue in either Lynd case and was never passed upon by the court in either case. Whatever language the Court of Appeals used in either Lynd case, therefore, was pure dictum and established no precedent to guide the action of any court.
Nevertheless, the language misled the author of the opinion in the Dogan case,
The District Court for the Northern District of Mississippi
When the case reached the Court of Appeals, the two specifications of error filed by the United States were these:
No issue was raised before the Court of Appeals, therefore, as to whether relief "extends as far as the sovereign State itself." It is clear, therefore, that the language used by the Court of Appeals in the Dogan case (314 F.2d page 771) is dictum and is not authority in any case involving a question similar to the one before us. In fact, Judge Rives, who is the author of Atkins, supra,
The State of Mississippi further makes the point that any violation of 42 U.S.C. § 1971, which would give rise to a cause of action, would constitute a crime under the provisions of 18 U.S.C. § 242. This would then amount to an interpretation of the statute which would authorize a suit between the sovereign federal government and the sovereign state in a criminal matter. As between sovereigns there is no law of crime. It additionally makes the point that the State cannot create an agency to commit a crime, and therefore no statute by fiat can create such a criminal agency relationship.
The State also contends that the special statutes under which this three-judge Court is convoked (28 U.S.C. § 2281-2284) specifically authorize an injunction only "restraining the action of any officer of such State in the enforcement or execution" of the statutes charged to be unconstitutional.
In Federal Trade Commission v. Claire Furnace Co.,
In Kresge Co. v. Ottinger, D.C., 29 F.2d 762, a special three-judge court, speaking through an opinion by Circuit Judge A. N. Hand, took similar action, as evidenced by the following excerpt from their opinion:
The Federal Court System has always adhered to the rule that constitutional issues are not to be decided except where such constitutional decision is clearly required by the interests of justice. Perhaps the landmark case in support of this proposition is Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688. Speaking through Chief Justice Hughes, the Court stated [p. 324 of 297 U.S., p. 472 of 56 S.Ct. 80 L.Ed. 688]:
The concurring opinion of Mr. Justice Brandeis gives us an outline of the great judicial principles applicable to constitutional adjudications: [Pp. 345-348 of 297 U.S., p. 482 of 56 S.Ct. 80 L.Ed. 688]:
We are of the view that the motion to dismiss filed by the State of Mississippi presents a case where the Court can and should avoid a decision on a question of constitutionality where, as here, the matter may be decided on non-constitutional grounds. As the Fifth Circuit pointed out in United States v. Atkins, supra, it would not be appropriate for it to grant relief against the State where Registrars are in office and are subject to suit and injunctive relief. Nowhere does the Complaint, except by injecting rash conclusions, demonstrate that the State, as such, is enforcing or threatening to enforce the statutes or constitutional provisions under attack. Rather, it is the County Registrars who are defendants who enforce the regulations in question.
Before leaving the question of the suability of the State, it is well to consider the circumstances under which the statute granting the right to sue the State came into being. The United States of America sued the State of Alabama, together with certain registrars who had resigned from the position before the suit was filed. The United States District Court for the Middle District of Alabama dismissed the action holding, among other things, that the sovereign State of Alabama was not subject to suit by the United States in the action involving alleged discrimination in the denial to Negroes of voting rights. United States of America v. State of Alabama et al., March 6, 1959, 171 F.Supp. 720, 730. It relied on the fact that the Civil Rights Act of 1957 did not specifically grant the right to proceed against the State. The court there followed the general law as stated in United States v. United Mine Workers of America, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, in which it was held that sovereign governments were not included within the word "Persons."
The Court of Appeals for the Fifth Circuit affirmed the decision of the district court, United States of America v. State of Alabama, June 16, 1959, 267 F.2d 808, stating:
While this action was pending in the Supreme Court upon certiorari, the Congress
From these facts it is clear that the statute was passed for a particular purpose, i. e., to fill a vacuum caused by the fact that there were no registrars having jurisdiction over Macon County, Alabama. Under settled principles of constitutional law, this departure from traditional constitutional principles would be held to apply only to the circumstances and conditions which lay behind the Court's holding. We do not have such a situation here. The registrars are all available and full relief can be had against them, and the dismissal of the State from the controversy will in no wise prejudice the granting of the relief sought.
For the reasons stated we think that the proper course here is to grant the motion of the State to dismiss on the ground that the complaint fails to state a claim against it upon which relief could be granted.
The State Board of Election Commissioners is, by statute composed of the Governor, the Secretary of State, and the Attorney General of the State of Mississippi. § 3204, Mississippi Code of 1942, Annotated. The duties of these Commissioners are comprehensively prescribed and particularized by statute. § 3209.6 Mississippi Code of 1942, Annotated. We have examined the Complaint in detail without finding any fact allegation that these Commissioner Defendants did in any way enforce any of the statutes under attack, nor is any fact allegation made that their actions enforced a denial of registration to any otherwise qualified applicant because of the race or color of the applicant or for any other reason.
No choice is given to the State Election Commission in the selection of County Registrars, that duty arising only in the extreme situation where they have reached the determination that the duly elected Circuit Clerk is an "improper" person. They have no control over the tenure or actions of the Circuit Clerk as Registrar once they have appointed him as required. They are rigidly regulated as to the type of registration forms they must prepare. The statutes make it plain that they are mere conduits through whom a minor part of the registration process is required by statute to flow. The State Election Commissioners are
Three-judge courts constitute a unique burden on the Federal Judiciary. To keep this burden to a minimum, the statutes vesting the right to call such courts to sit in judgment of constitutional challenges are to be strictly construed as a procedural technicality and not as a broad remedial social policy. See Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800; Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741; and Kesler v. Dept. of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641.
Where, as here, parties are brought before such a tribunal who are not at all within the contemplation of the statutes attacked and who are not indispensable, necessary or proper parties to the determination of the issues in controversy, they should be dismissed in the interests of sound judicial administration as well as to spare the litigants themselves the expense and inconvenience of a trial procedure. For these additional reasons, the motion of the State Election Commissioners to dismiss for failure to state any claim upon which relief could be granted should be sustained.
We are further of the opinion that the statutes of Mississippi make it plain that the County Registrar alone is charged with the enforcement of the statutes under attack here.
Complainant makes no charge of any conspiracy or any concert of action between any two or more of the individual county registrar defendants.
In the absence of a charge of joint wrong-doing by the individual defendant registrars, we find no authority to continue the suit against them as a joint cause of action. Each act of registration or failure or refusal to register must, of necessity, take place separately and apart from every other act of registration or non-registration, even within the same county. The Complaint contains no allegation that any such act of registration or failure or refusal to register was a part of any transaction or occurrence concerned with similar acts in a separate county. The only nexus is the use of the same registration laws. This is insufficient to support a joint cause of action.
If the plaintiff intended by its Complaint to state also a cause of action based upon a pattern and practice of individual racial discrimination by these defendants in the enforcement of the duties of their offices, such causes of action would be justiciable solely before a single district judge.
This Court has venue jurisdiction of the claims asserted against H. K. Whittington, the Registrar of Amite County, and against Wendell R. Holmes, the Registrar of Pike County, both of these defendants being residents of the Jackson Division of the Southern District. We do not agree with plaintiff's effort to consolidate the various counties with the idea that the acts of the several registrars may be pooled in determining whether there has been a pattern or practice under the terms of the statute. Those very terms recognize that each county in Mississippi is a separate unit for registration and must be so treated in every action against the registrar.
The asserted right of plaintiff that the United States can maintain this action against any one or all of the defendants is not sustained by the authorities upon which the plaintiff relies.
§ 2281 deals with three-judge courts, and we need spend no time in further discussion of that statute. The controversy is limited, therefore, to whether the Congress could vest in the plaintiff the right claimed by it to maintain this particular action and whether § 1971 does, in fact, justify maintenance by the plaintiff of the action it has brought. It should be borne in mind what is fairly stated in the complaint and the briefs of the plaintiffs and what its attorney categorically stated at the argument — that the sole object of this action is to have the Court declare the attacked sections of Mississippi's Constitution and statutes unconstitutional, and to substitute therefor the alternative suggestions set forth in the complaint; the plaintiff specifically disavowing any desire or purpose to seek any relief based upon discrimination. This is further verified by the four claims stated supra in plaintiff's own language.
It is elementary that all federal jurisdiction is statutory unless the Constitution itself confers it. And the existence of federal jurisdiction must be
The only claim asserted by plaintiffs which has any show of merit is that this action is maintainable under 42 U.S.C. § 1971(d), which has been quoted supra. That subsection must be considered in the light of the one immediately preceding it: "Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section * * *." The provision of subsection (a) to which reference is made is in these words: "(a) All citizens of the United States who are otherwise qualified by law to vote in any election by 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," notwithstanding the Constitution, laws, custom or usages of the state.
These words from subsection (a) plainly state that the United States may intervene in aid of any person of color, provided that person is "otherwise qualified by law to vote at any election by the people in any state * * *" (Emphasis added.) The meaning of these provisions seems perfectly clear. The United States may institute proceedings for preventive relief, provided a state officer is threatening or attempting to deny him the right of voting in a federal election; and provided also he had "the qualifications requisite for electors of the most numerous branch of the state legislature." Then, and only then, could the United States come to the rescue of one of its citizens whose right to vote was challenged. In that event, the Attorney General was empowered to bring an action for preventive relief.
The complaint here fails to show that those circumstances existed. This action seeks no relief for any citizen who is qualified under the laws of Mississippi to vote for electors of the most numerous branch of Mississippi's legislature. This action seeks solely to have the Court declare unconstitutional most of the qualifications Mississippi defines for electors of the most numerous branch of its Legislature. It constitutes a massive scatter-gun attack against the many important provisions of Mississippi's Constitution and statutes. There is no intimation that § 1971, as a whole or as to any part of it, vests such a right in the United States itself. § 244 was placed into the organic law of Mississippi by its people in convention assembled after the confusions and frustrations of twenty years of the Tragic Era had subsided enough for its citizenship to bring a semblance of order out of chaos. The people themselves, through their elected convention, placed that section in the Constitution.
The other constitutional provisions attacked by the plaintiff entered the Constitution of Mississippi by the direct vote of the people. The symmetrical statutory structure for carrying out the constitutional mandates was worked out and duly passed by the legally constituted legislatures of the state. § 1971 does not invest the United States or its Attorney General with any power to bring any action to destroy any state's constitution or laws.
It is clear that § 1971 contemplated and envisioned the existence of state requirements for voting which did not on their face discriminate because of race or color. The operative language is "[a]ll citizens of the United States who are otherwise qualified by law to vote." This presupposes the existence of valid state requirements for voting. There is no provision of the Constitution or a statute of Mississippi which deprives any citizen of the right to vote because of race or color.
Guinn involved a constitutional provision of Oklahoma, which set up a registration requirement for voting, but provided that this requirement should not be applied to any person who was, on January 1, 1866, qualified to vote or to the lineal descendant of such person. The Supreme Court found this constitutional provision on its face to be in conflict with the Fifteenth Amendment, since it was well known that no Negroes were qualified to vote in Oklahoma on January 1, 1866. This brief quotation from the decision in Guinn (238 U.S. 347, at 362, 35 S.Ct. 926, at 930, 59 L.Ed. 1340) will suffice to demonstrate the attitude of the court then and now:
Language of identical import is found in Reese (92 U.S. 217-218, 23 L.Ed. 563).
The first sentence of subsection (c) of § 1971 is the one which grants the Attorney General the power to institute certain proceedings under certain circumstances: "Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section." The plain meaning of that part of subsection (c) is that Congress vested the Attorney General with power to seek injunctive relief against state election officials acting under color of law when said officials should deny a person "otherwise qualified to vote" of the right to vote because of race or color.
Assuming, therefore, that § 1971 does empower the United States, through the Attorney General, to assist legally a person who meets all of the other qualifications of Mississippi law, who is being discriminated against because of his color, the statute does not tend to support the action here, which is not based upon discrimination, but upon the asserted fundamental unconstitutionality of the entire structure of Mississippi law providing voter qualifications. Under these circumstances the least this Court can do is to avoid a doubtful constitutional construction and to dismiss the action because it is not brought under any power given by the statute relied on, but is a direct attack by the Indestructible Nation as such, and is against the Indestructible State as such. And, moreover, it is an attack against a state aimed at destroying its action in a field committed exclusively to it by the Constitution; to-wit, the state's power to determine and define the qualifications of the electors who may vote not only in state elections, but in federal elections as well.
Article I, Section 2 of the Constitution provides that representatives shall be "chosen every second Year by the
As pointed out by Dr. Ritz, the very simplicity of this language of the Constitution might tend to suggest casualness of draftsmanship. He promptly points out, however, that such was not the case, suggesting that the records of the convention, as discussed in Farrand, show that it was deeply concerned with problems relating to the election of officials of the Federal Government, adopting a plan for the indirect election of the President and Vice President by use of an electoral college. The convention provided: "Each state shall appoint in such manner as the legislature thereof may direct, a number of electors * * *", thereby leaving the method of selection and qualifications to the states, although Congress was authorized to establish the time of their choosing.
On May 29, 1787, in presenting the resolutions known as The Virginia Plan, which provided the basic framework of the Constitution, Edmund Randolph proposed a national legislature to consist of two branches, the members of the first to be elected by the people of the several states, and the members of the second to be elected by the first branch from persons nominated by the state legislatures. The national executive was to be elected by the national legislature.
On May 31, sitting as a committee of the whole House, the convention approved the resolution calling for a national legislature to consist of two branches, and then considered and debated the resolution calling for election of the first branch by the people, adopting it by a vote of six states to two, with two states divided.
During consideration of The New Jersey Plan, still another attack on popular election was narrowly defeated, then another motion to reconsider was voted down by six states to four, with one divided.
As Dr. Ritz points out, on page 950 of the A.B.A. Journal for October, 1963, various aspects of the provision were debated with care until, finally, the provision was passed without any state dissenting. The debate on the qualification of voters was thus ended. On August 9th, the convention granted to Congress the power to supersede state regulations as to the time, place and manner of holding elections. The debate shows that it was pointed out that the provision had nothing to do with voter qualifications.
On September 8th, the convention named a committee of style, which made only one change which was adopted by the convention denying Congress any power over the place of election of senators. The provisions relating to elections
The article further points out that the Seventeenth Amendment ratified in 1913, providing for the popular election of senators, follows the pattern set forth in the original Constitution by providing that the electors in each state shall "have the qualifications requisite for electors of the most numerous branch of the state legislatures".
It further states that, except for the Fifteenth and Nineteenth Amendments, which place restrictions on the qualifications the states may require of electors for state officials and so, indirectly, become limitations on the qualifications as defined in the original Constitution, "Otherwise, there are no constitutional restrictions on the qualifications the states may require of electors for state officials, and so also of electors of federal officials.
It is clear, therefore, that in the ratification of the Seventeenth Amendment and of the Poll Tax Amendment, the Congress of the nation and the people have affirmed in this century that the power to establish or change the qualifications of electors for federal officials can be accomplished by constitutional amendment alone.
Dr. Ritz's estimate of the constitutional scheme for establishing the qualifications of electors for federal officials is thus stated at the conclusion of his article:
The decisions of the Supreme Court teach a similar lesson. Slaughter-House Cases, 16 Wall. 36, 83 U.S. 36, 21 L.Ed. 394; Minor v. Happersett, 21 Wall. 162, 88 U.S. 162, 22 L.Ed. 627; United States v. Reese, supra; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005; Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340; Newberry v. United States, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913; Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252; Lassiter v. Northampton Board of Elections, infra.
At the risk of tedium, we feel that we ought to discuss briefly the provisions of Mississippi's Constitution and statutes which plaintiff would strike down. We find each of them to be within the power of the State and to be reasonable and valid. For convenience, we copy at this point in the margin the language of §§ 244 and 241-A of the Constitution.
It is appropriate at the outset of this portion of the opinion to set forth the basic principles which have guided the court in reviewing questions presented by the motion to dismiss:
Courts should consistently seek an interpretation of a statute which supports constitutionality and avoid, where posible, holding that the statute is vague or indefinite.
When the terms of a statute are unambiguous the court may not, in construing it, speculate on probabilities of the intention of Congress.
"The plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction."
With these principles in mind we have examined the provisions of the constitutional and statutory sections here challenged to determine if they are ambiguous or uncertain. We find them to be plain, simple and straightforward. Their meanings and intention are transparent and completely unambiguous. We have, therefore, determined that their constitutional status cannot be changed by delving into supposed legislative intent, history or purpose.
It is likewise true that the method of application or administration of
The reverse effect has also been negated:
Indeed, any other method of statutory interpretation would permit members of the Executive Branch, at will, to make or unmake legislative enactments. We do not hold that arbitrary or discriminatory administration of a law which is valid on its face will not give rise to a right of action against the offending enforcement official; rather, we limit our holding to the determination that such administration cannot change the constitutional status of the law on its face.
The analysis of the Complaint required by the motions before us should properly begin with a consideration of the validity of Section 244 of the Mississippi Constitution. This same section in its present form was before this Court in Darby v. Daniel, D.C.1958, 168 F.Supp. 170, from which no appeal was taken. We could very well fashion our opinion at this point by literally rescripting Sections I and II from this opinion, but such a procedure would be needlessly prolix. Suffice it to say that we adopt those two sections as our opinion here upholding the constitutionality of Section 244 on its face.
Since the date of the Darby decision, the Supreme Court of the United States has again placed its stamp of constitutional approval on the use of a literacy test as a permissible voter qualification requirement. Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. The court there stated:
In Trudeau v. Barnes, 65 F.2d 563, certiorari denied 290 U.S. 659, 54 S.Ct. 74, 78 L.Ed. 571, the Court of Appeals for the Fifth Circuit approved Louisiana's constitutional requirement embracing reading and interpreting its Constitution and that of the United States. However, on November 27, 1963, in the case of United States v. State of Louisiana, supra, a two-judge majority of a three-judge District Court panel hearing that case held that the Trudeau case was no longer valid in the light of the decision in Davis v. Schnell, supra, and "the more recent cases." They also pointed out that the Trudeau court, perhaps because of the poor presentation of the case, did not have the "benefit" of evidence of discriminatory purpose and proof of "discriminatory affect" of the Louisiana interpretation test. We think this citation is invalid especially in view of the Supreme Court's holding in Lassiter.
We note, moreover, these differences between United States v. Louisiana and the case here presented, it being there contended:
1. The Louisiana Board of Registration has the power to remove at will any parish registrar of voters;
2. The parish registrar's whim alone determines who will be tested and who will be registered without testing;
3. No written records were made in most test cases, thus precluding the use of such records for check or review purposes;
4. The Louisiana Registrar is vested with "raw power;"
5. The test prescribed by Louisiana's law has no rational relation to a legitimate governmental objective; it vests unrestrained discretion in the Registrar; it is subjective, unreasonable and is incapable of equal enforcement.
Their opinion equates the Louisiana constitutional provision with Alabama's Boswell Amendment, which was condemned in Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093. For the reasons set out in Darby and because of the legal and factual differences noted above, we cannot agree that Mississippi's Section 244 presents the same questions.
The Louisiana three-judge opinion also places much emphasis on its conception of the difference between "literacy" and "understand" and "interpretation." The latter two phrases are said to be words without definite meaning in the law and unlike the words "read" and "write." We cannot agree with the court's observations there. First of all, it seems clear to us that, when the Supreme Court stated "Literacy and intelligence are obviously not synonymous" in its opinion in Lassiter quoted above, it did not mean that tests which require a showing of comprehension, understanding or interpretation are not literacy tests. Rather, we believe the court there meant to demonstrate logically that an illiterate person could be intelligent, but that literacy was nevertheless a permissible standard for states to require of prospective electors. The dictionary defines the adjective "literate" as "instructed in letters; educated; specifically, able to read and write." It defines the noun "literate" as "one who can read and write." The transitive verb "read" is thus defined: "to go over, especially, with apprehension of the meaning of, as characters or words; to take in the sense of, as of language, by interpreting the characters with which it is expressed. To utter aloud or render something written, especially so as to give an interpretation of its significance. To interpret; to discover the meaning of." The transitive verb "read" is defined: "to peruse or to go over with understanding." [Emphasis added.]
The lack of an effective review procedure is another significant difference between the Louisiana case and Mississippi's Section 244. In Section IV of the opinion in Darby, the court discussed in detail the machinery which Mississippi had at that time provided for reviewing decisions of the Registrar.
We would also call particular attention to the fact that the words of 42 U.S.C. § 1971(d) permitting recourse to this Court, without regard to whether the party aggrieved shall have exhausted administrative or other remedies, were also before the court in Darby. Nowhere does the Bill of Complaint before us allege or aver that anyone who claims to have been denied the right to register even began the "simple," "cheap," administrative remedy open under Mississippi law, let alone pursued it or exhausted it.
For all of these reasons, we distinguish the case of United States v. Louisiana, supra, from the situation presented by the Complaint now before this Court. To the extent that its holdings may conflict with those here, we do not follow it.
Section 244 should be appraised in yet another way, as suggested by the Supreme Court in Yick Wo v. Hopkins, Sheriff, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. In that case, the court suggested a simple but effective test to determine if a statute or ordinance vests arbitrary power in the officer charged with its enforcement and administration. This test is as follows:
Because of the result of the test, the court held the statute there under consideration to be purely arbitrary.
For sake of comparison, we call attention to the situation presented in Schnell v. Davis, supra, and the Boswell Amendment and its implementing statute requiring an applicant for voter registration to establish to the satisfaction of the Registrar that he or she was qualified. If we apply the mandamus test suggested by Yick Wo, we would have this situation: a fully qualified applicant would request the court to mandamus the Registrar to place his name on the rolls. The Registrar could persist in his denial and resist the mandamus action by simply stating that he was not satisfied with the applicant's attempt to establish to him that he or she was qualified. This would be a complete answer to the mandamus proceeding without reason given and without further responsibility on the Registrar's part.
Under the provisions of Mississippi's Section 244, the situation is just the reverse. Here, if a qualified applicant has made a reasonable interpretation and been refused registration by either the Registrar or the County Election Commission, a mandamus action would most surely result in a requirement that the applicant be registered, because the question before the court would be: did the applicant give a reasonable interpretation?
Seeing no reason to depart from our opinion in Darby v. Daniel, we hold that Section 244 of the Mississippi Constitution is valid on its face and does not violate the Constitution or Laws of the United States.
The Complaint next charges that Section 241-A of the Mississippi Constitution violates the Constitution of the United States. Good moral character is a prerequisite for admission to practice before the Supreme Court of the United States,
Mississippi presently requires good moral character of:
Taxicab Operators § 3495 Incorporators of Banks § 5156 Bank Examiners § 5165 Architects § 8632-09 Attorneys § 8654 Barbers § 8725 Dentists § 8755 Embalmers § 8782 Nurses § 8816 Optometrists § 8840 Pharmacists § 8848 Physicians § 8879 Podiatrists § 8896 Accountants § 8905 Veterinarians § 8914-07.
Counsel have pointed out in argument that a majority of states require good moral character of applicants for licenses as architects, attorneys, barbers, engineers, medical doctors, undertakers and embalmers, pharmacists, real estate salesmen, veterinarians and public accountants. These are but a few examples of the wide use that the term has found in statutory situations where legislative bodies sought to extend privileges to those citizens whom it thought worthy of confidence and trust. We mention these instances to demonstrate that good moral character has found widespread acceptance as a concise and meaningful description of an attribute of a desirable citizen. It seems to us to be self-defining. Any attempt by the legislature to have written a definition applicable to all applicants for voter registration or for any of the licenses mentioned would undoubtedly have ended in a cumbersome, wordy enactment which could have added nothing to the inherent meaning of the words themselves and might well have detracted from their efficient and effective application.
Requiring that applicants for registration as qualified electors be of good moral character is reasonable and is patently not discriminatory on the basis of race. We note that there is no allegation or charge that Negroes have bad moral character as a racial trait, even though such an allegation would not per se invalidate the enactment.
The Complaint objects to this requirement on the ground that, since more whites than Negroes are now registered, the greater numerical impact will fall on Negroes. This statistical argument is without legal merit.
If statistics of present voter registration as compared to census figures can create a climate that would make an otherwise wholesome and valid enactment void because of race discrimination, then every other requirement governing voting — whether newly enacted or covered with antiquity — would be similarly void on the same statistical basis. Each such enactment making any requirement for registration would necessarily affect more of one race than the other and thus under plaintiff's theory, be invalid. If census figures are considered in the same sterile and unrealistic atmosphere, they demonstrate that race discrimination must be most flagrant in the states of the northern and midwestern portion of the nation because few, if any, Negroes can be found there.
Plaintiff contends that the good moral character requirement "facilitates" racial discrimination, but they do not say how, other than objecting to the lack of a statutory definition. It seems to us that a legislative definition, which could constitutionally bear more heavily on some of the undesirable racial traits peculiar to the Negro as a racial group, might constitute just such a "facility" instead of avoiding it. It is our view that the words are sufficiently direct and plain to be self-defining.
The Complaint next turns its attack to the statutory law of the State of Mississippi. It alleges that the provisions of the last paragraph of Section 3209.6 (and 3209.7), Mississippi Code of 1942, Annotated, are unconstitutional and void as being in conflict with and contrary to the requirements of Title III of the Civil Rights Act of 1960.
If this statute were to be construed as requiring registrars to destroy records under the circumstances named, it would at most be in conflict with the Federal Statute (42 U.S.C. § 1974). It does not do so. The words "not required to retain" should not be interpreted to mean "permitted to destroy." With this construction the State statutes do not in any way conflict with the Federal enactment. If a registrar does not comply with the provisions of Title III, he cannot justify his noncompliance on the basis of any compulsion derived from the Mississippi Act. It must be construed as permissive only, since it is readily susceptible of that construction. In fact, we cannot see that it is susceptible of any other reasonable construction. These concluding paragraphs of Sections 3209.6 and 3209.7 are constitutional.
Section 3213 of the Mississippi Code of 1942
Section 3212.5 of the Mississippi Code of 1942
It is charged that these two sections "facilitate" racial discrimination by establishing formal, technical or inconsequential errors or omissions as grounds for disqualification. We do not agree. The registrar is required by the statutes to make this endorsement on all forms of all applicants without regard to race. The statute also makes it the responsibility of all applicants to make inquiry to determine the status of their application. Again, these challenges are unaccompanied by any fact allegation that the statutes are directed against a racial trait. The proper and responsive completion by an applicant of a form is neutral on race, creed and color. The required endorsements cannot, in our opinion, constitute any facilitation of racial discrimination. If anything, they would hinder it by requiring a more complete record of the action taken by the registrar, which would be available in the event of a challenge to his action.
Another ground of invalidity involves the numerical effect of the statutes. We have previously discussed and rejected this ground as a vehicle by which unconstitutional deprivation may be established in connection with our discussion of the good moral character requirements of Section 241-A of the Constitution. We adhere to those same views here.
It is next contended that these statutes convert the application form into a hypotechnical and unreasonable examination which constitutes an arbitrary restriction on the exercise of the "right to vote." It may be thought unnecessary to reiterate here the status of the Federal and State sovereignties in relationship to the right of suffrage, but it appears to us to be a matter of sufficient moment to warrant indulgence.
In Minor v. Happersett, 21 Wall. 162, 88 U.S. 162, 22 L.Ed. 627, the Court pointed out:
In the case of United States v. Reese, 92 U.S. 214, 23 L.Ed. 563, the court stated:
In McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869, it was stated:
In Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817, the court stated:
As recently as Lassiter v. Northampton County Board of Elections, supra, the court stated:
We assume that the State of Mississippi must believe that the information required on its voter application forms is proper and necessary information to determine the qualified or unqualified status of the applicant under its requirements. If it did not so believe, then the information should not be requested; but, believing it to be required, it seems to us that it is completely within its prerogative to demand that the form be properly and responsively completed and that the registrar make a full written record of his actions thereon. If it is
We do not find that these statutes vest unlimited discretion or arbitrary power in the registrar. The words "properly" and "responsively" indicate to this Court a definite enough standard for intelligent and consistent application. The completion of the oath and signature also appear to be normal requirements on their face. No tricky application form is alleged or exhibited. If it does, in fact, operate to "trip" applicants into a disqualifying omission, it again operates indiscriminately of race or color. Even if we thought it were an unwise requirement, we cannot for that reason alone find it to be unconstitutional. After a careful review of the statutes themselves in the light of all objections made, we are of the opinion that Section 3213 and Section 3212.5 of the Mississippi Code of 1942 are constitutional.
The next attack is made upon Section 3212.7 of the Mississippi Code of 1942
Sections 3217-01 through 3217-13 prescribe the procedure for challenges and hearings concerning any challenges made.
These two statutes are alleged to be unconstitutional because they vest power and authority in white citizens to harass Negroes. Even so, it is likewise true that the statutes vest power and authority in Negro citizens to harass whites, in Negro citizens to harass Negroes, and in white citizens to harass whites. The choice as to whether to exercise the power conferred or not is one of purely private decision not subject to the mandates of the Fourteenth or Fifteenth Amendments. With regard to the contention that no objective standard is provided to limit the grounds of challenge, we disagree. The grounds are limited to the good moral character of the applicant and other requirements which the applicant must meet in order to be qualified to register to vote.
The challenge is made that the requirements are onerous, arbitrary and unreasonable. These challenges are directed to the legislature's wisdom in the enactment of the statute and not to any permissible grounds of constitutional objection. We do not see in the grant of authority to the registrar to take the matter of a challenge under advisement any unlimited power to forestall registration on a racial basis. Surely the statute contemplates and must be interpreted to require reasonable action on the part of the administrative officer in the discharge of the duties conferred upon him under the authorities previously mentioned.
Here again we have statutes whose wisdom we are not free to debate. The State of Mississippi could certainly feel that each community should be advised of the names and addresses of its members who seek through the exercise of the franchise to control its political fate. It is certainly within the state's power to determine that additional solemnity and formality should be added to the act of application for registration. We are unable to say that the requirements of these statutes bear no reasonable relationship
The Complaint might also be interpreted to challenge Section 3232 of the Mississippi Code of 1942
In view of our ruling on the constitutionality of Section 241-A requiring good moral character as a prerequisite to registration, we deem it unnecessary to discuss further the contentions of the Complaint as to the last Code section. As to the section requiring the elimination of the designation of race from the poll books, we could state categorically that the new statute is constitutional, but it would be further pertinent to observe that this appears to the Court to be a situation where the state could be thought to be on the "horns of a dilemma." If it left the designation of race a part of its requirements, it would be subject to criticism for making a record of race where the race of the elector was immaterial. Now, having acted to remove reference to race, it finds itself criticized for having done so.
The Supreme Court, this term, held that a state statute
We hold Section 3232 and Section 3209.6 to be valid and constitutional.
In all of these statutory areas, we believe the question of validity must turn on a determination of the power of the state, not its supposed secret intentions or presumed improper motives. In the light of our comments above, we believe that it would be no more fitting to inquire into the motive or object of the legislature than it would be to permit such an inquiry to be made as to the motives of the judges of a court for making a decision, or the executive branch for taking or withholding executive action in any given situation.
And see the discussion of this question in Darby, supra, 168 F.Supp. at pp. 176, et seq., and in Palmer v. Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108; Beers for Use of Platenius v. Arkansas, 20 How. 527, 15 L.Ed. 991; Memphis & C. Railroad Co. v. Tennessee, 101 U.S. 337, 25 L.Ed. 960; and Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842.
We would hardly feel that a proper sense of proportion was being observed if we did not draw out this already much too long opinion sufficiently to say that those who speak for the United States in this case do not propose to leave Mississippi's Constitution and statutes wholly unrecognized. After having importuned this Court to strike down substantially
The Complaint, as amended, thus fails to state a claim upon which any relief can be granted and should be dismissed with prejudice, and the relief prayed for should be denied. A judgment accordingly, with costs, will be entered.
WILLIAM HAROLD COX, District Judge (concurring):
The majority opinion of the Court in this case, prepared by Honorable Ben F. CAMERON, United States Circuit Judge, very forcefully and correctly decided this case, and I unconditionally joined in that opinion and in executing the consequent judgment of the Court, but wish to add my concurrence therein as herein expressed.
Initially, and as a fundamental proposition of universal application, the United States had no authority to institute or maintain this suit in the absence of express statutory authorization therefor. That position was readily admitted by counsel at the bar, but it is contended that 42 U.S.C.A. § 1971 expressly provided such necessary authorization for this suit. A careful analysis of that section of the statute will reveal the fallacy of that contention. Indeed, the United States was expressly granted authority to bring certain suits against certain persons for preventive relief against violation of certain Civil Rights of others. The State of Mississippi is simply not such a person as was envisioned by that statute. It was not designed, or intended to grant the national sovereign any carte blanche authority to arbitrarily and capriciously select any law, or package of laws of a state which it desired invalidated, and to have declaratory relief by a test in such manner of the constitutionality thereof.
The suability of the sovereign State of Mississippi by the United States in this case presents that serious question at the very threshold of this suit. Contrary to the dissent herein, no question is presented, or relied on by anybody in this case as to any immunity afforded a state by the 11th Amendment to the Federal Constitution. It is perfectly clear in this case that the United States must find express authority in 42 U.S.C.A. § 1971 (c) to bring this suit, or it is without authority in this case to sue the State of Mississippi. This Congressional Act very carefully limited the right of the United States to bring a suit under the act against a person offending another person by depriving him of a right under the act, and for preventive relief. Ordinarily, the term "person" does not include a state or a municipal corporation, unless the statute itself makes the intention to do so very clear. Significantly, the last paragraph of § 1971(e) contains its own lexicon. Congress made it clear that the word "vote" meant all things prerequisite to voting, including registration where necessary to vote, and casting the ballot and having it counted. Other well known words and phrases were specifically defined to comply with the legislative intent. The Congress
A statutory intent to authorize the United States to sue a sovereign state is not to be lightly inferred. Such authority must be found in a statute in the very clearest terms before a Federal Court will assume jurisdiction of a sovereign state. In United States v. Alabama, supra, Judge Hutcheson as chief judge, speaking for the Court 267 F.2d at page 811, said: "Absent such specific conferring of jurisdiction, a federal court would not, indeed could not assume jurisdiction over a sovereign state without a precedent determination that, though the jurisdiction had not been expressly conferred, the language of the invoked statute carried the necessary, the unavoidable implication that the congress upon the gravest considerations and after the utmost thought and deliberation had intended to and did confer it."
The State Board of Election Commissioners (composed of the Governor, the State Attorney General and the Secretary of State) are assigned statutory duties in connection with the preparation of forms of applications which the registrars use in testing the qualifications of an applicant to register to vote. These commissioners are thus acting in a legislative capacity in the discharge of such function and are, therefore, not ordinarily amenable to suit. But their
The gravamen of this complaint in its entirety is that two sections of the Mississippi Constitution, and six state statutes implementing those constitutional sections are all unconstitutional and void in the opinion of the United States. The acts and laws under attack in this case are Mississippi Constitution 1890, § 241-A
States to bring a suit against a registrar for any violation, or any threat of violation of the Civil Rights of a citizen through discrimination against that citizen in any manner, or to any extent by any sort of device however clever or concealed it may be.
It must be remembered that this is not a voting case. It is a registration case, but registration is a condition precedent to voting in Mississippi and the United States, as plaintiff, may seek preventive relief against a registrar as a person (as an official, indeed, but not as a private individual) under § 1971(c) on the basis that such registrar is doing or is threatening to do something in violation of 42 U.S.C.A. § 1971(a). It is not stated in the complaint that either one of these registrars ever did, or threatened to do anything in violation of that statute, but it is stated that these registrars were
Precisely, the claim against these registrars is that they are alleged to be engaged in administering these constitutionally invalid laws. The claim being more specifically that since only 5% of all adult negroes are registered, and since approximately 67% of all adult white citizens are registered, that the disparity and imbalance resulting from such circumstance will necessarily operate with discrimination against negroes. The fallacy of that claim is readily apparent. The law and its application and enforcement with an even hand, and completely without regard to race or color, simply defies any tenable criticism of its constitutional validity.
The case of Darby v. Daniel, D.C., 168 F.Supp. 170, was a carefully studied and prepared opinion of a three judge court composed of three distinguished Federal jurists from Mississippi. That decision settled the law as to the constitutionality of § 244, Mississippi Constitution 1890 and implementing statutes and decided it correctly and no appeal was taken. There, the Court said: "We hold, therefore, that plaintiffs have wholly failed to establish that the amendment to Section 244 of the Mississippi Constitution of 1890 is void on its face, or because it was the product of base motives. We hold, on the other hand, that said amendment and the statutes passed in connection with it are valid on their face and in fact, are a legitimate exercise by the State of its sovereign right to prescribe and enforce the qualification of voters." That decision is decisive of most of the constitutional questions again presented here.
It is suggested that the literacy test in Mississippi is invalid because of the sweep of discretion thereby afforded a registrar in giving a test to an applicant. It will be noted that § 244
The vagueness doctrine does not condemn the phrase even if it appeared in a criminal statute. Words like "moral turpitude," "good behavior," and other such ambiguous and nebulous phrases have appeared in our statutes for almost a century. The courts have understood them and applied them according to the common understanding and practices with respect thereto. In Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L. Ed. 886 it is said: "We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 1930, 280 U.S. 396, 399 [50 S.Ct. 167, 168, 74 L.Ed. 508]. Impossible standards of specificity are not required. United States v. Petrillo, 1947, 332 U.S. 1 [67 S.Ct. 1538, 91 L.Ed. 1877]. The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 1926, 269 U.S. 385 [46 S.Ct. 126, 70 L.Ed. 322]."
In Brukiewicz v. Savoretti, (5CA) 211 F.2d 541. This Circuit in affirming the findings of the examiner as to the good moral character of a petitioner for naturalization said: "A wide discretion is vested in the trial judge in determining whether or not `good moral character' exists. It is to be determined as that term is generally understood, but petitioner's character must measure up to that of the average citizen in the community in which he resides before he is entitled to citizenship by naturalizaton."
In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the question
In Marie Posusta v. United States, (2 CA) 285 F.2d 533, an applicant was denied citizenship for want of good moral character and the Court said: "Much has been written as to the scope of that phrase, and, as was inevitable, there has been disagreement as to its meaning. However, it is settled that the test is not the personal moral principles of the individual judge or court before whom the applicant may come; the decision is to be based upon what he or it believes to be the ethical standards current at the time. United States ex rel. Iorio v. Day, 2 Cir., 34 F.2d 920, 921; Repouille v. United States, 2 Cir., 165 F.2d 152, 153; United States, v. Francioso, 2 Cir., 164 F.2d 163; Schmidt v. United States, 2 Cir., 177 F.2d 450, 451, 452; Johnson v. United States, 2 Cir., 186 F.2d 588, 590, 22 A.L. R.2d 240."
In Kahm v. U. S., (5CA) 300 F.2d 78, in answer to an attack on a statute for vagueness it was said: "Nothing is more common than for a jury in a case involving charges of negligence, as for example negligent homicide, to determine whether the proven conduct measures up to the standards of a reasonably prudent man." United States v. Levine, (2CCA) 83 F.2d 156, says: "Thus `obscenity' is a function of many variables, and the verdict of the jury is not the conclusion of a syllogism of which they are to find only the minor premise, but really a small bit of legislation ad hoc, like the standard care."
In Gundling v. City of Chicago, 177 U.S. 183, 20 S.Ct. 633, 635, 44 L.Ed. 725, an ordinance of the city of Chicago submitted to the mayor the question of the fitness of a party to have a license to sell cigarettes. This question was submitted for the exercise of discretion of a judicial nature. No standards are contained in the ordinance to guide the mayor in his decision. The Court in upholding that ordinance against Federal attack said: "Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business, or occupation they shall apply are questions for the state to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the
It has been repeatedly held that a state may properly require a literacy test as a condition precedent to suffrage. It is significant that in paragraph (e) of this same 42 U.S.C.A. § 1971 in the fourth unnumbered paragraph of that subparagraph, provision is made for a literacy test wherein the act provides: "Where proof of literacy or an understanding of other subjects is required by valid provisions of State law, the answer of the applicant, if written, shall be included in such report to the court; if oral, it shall be taken down stenographically and a transcript included in such report to the court." The United States cannot reconcile its complaint in this case with the announcement of the Supreme Court of the United States in Minor v. Happersett, 21 Wall. 162, 88 U.S. 627, 22 L.Ed. 627, which held: "The United States has no voters in the states of its own creation. The constitution of the United States does not confer the right of suffrage upon anyone." The sole function of the United States in this voting area is to prevent discriminations under the 14th, 15th and 19th Amendments, but the general prerogative of a state is to condition suffrage as it sees fit. Mississippi has seen fit and deemed it proper to require a voter (regardless of his color, race or origin) to be possessed of good moral character. That requirement was inserted in the organic law of the state by its insertion in § 241-A of the state constitution. It is complained that the term good moral character is not defined, and that no guide lines are supplied for its application, and that it is, therefore, a mere naked power subject to the capricious will of some irresponsible registrar. An examination of Chapter 573, Mississippi Laws 1962,
Chapter 569, Mississippi Laws 1962
Actually, a suit against a registrar is basically a local action. It cannot be treated as in this case as a joint and several action against these six defendant county registrars for their entirely separate and distinct and disconnected activities done in the performance of their duties done solely in their respective counties. That is necessarily so in this case where no registrar in one of the counties has ever done any official act in any other county and could not legally do so. But if any fallacy in law exists in that observation, then every registrar in each of the eighty-four counties in this state would be necessary and indispensable parties to this suit, and for lack of jurisdiction of anyone of whom, this Court could not proceed in their absence under Civil Rule 19.
This is not a diversity suit, and under the general venue statutes in this Court an action which is local in nature can be instituted only in the district of the residence of the defendant. The important considerations here, however, lie in the fact that the complaint nowhere charges that anyone of these registrars ever wrongfully did anything to deprive any negro of the right to register to vote in Mississippi. This is not a case wherein relief is sought against a registrar for discrimination. These registrars are charged with having applied the election laws of this sovereign state with an even hand to all citizens alike. It does not state a right of action of any kind against either one of these registrars. We are, therefore, undeniably faced with a complaint which fails to state a claim upon which any relief can be granted.
It is the clear and positive duty of the Court to consider and act upon motions like these before the Court in this case in limine to forestall any unnecessary delay or expense in protracted litigation. That is the unmistakable teaching of such cases as Flanders v. Coleman, 250 U.S. 223, 228, 39 S.Ct. 472, 63 L.Ed. 948; Kvos v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183; State of Rhode Island v. Com. of Mass., 12 Pet. (37 U.S.) 657, 718, 9 L.Ed. 1233; Walmac Co. v. Issacs, (1CA) 220 F.2d 108, 111; Battaglia v. General Motors Corp., (2CA) 169 F.2d 254, 256, cert. denied 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425. This Court in its exercise of a sound judicial discretion received and considered the motions of the defendants for lack of jurisdiction and for failure to state a claim against the defendants upon which relief could be granted, as provided by Civil Rule 12(b), and properly sustained those motions for the reasons indicated when it became perfectly apparent to the Court that there was no possible substance in the complaint.
Civil Rule 8(a) requires a complaint to set forth "a short and plain statement of the claim showing that the pleader is entitled to relief" and "a demand for judgment for the relief to which he deems himself entitled." That rule permits the full application of the Notice Pleading Doctrine to any complaint filed under this rule in a Federal Court. Nevertheless, a pleader must state enough of the ultimate facts and circumstances relied upon to give the adversary some reasonable notice under the rules of fair play to apprise him of the claim asserted
A state has the right to declare all of the qualifications for voting within the state. The Federal government has no power, or authority whatever in this field, except to prevent any discrimination among voters and any denial of the right of any citizen to vote on account of his race or color. Any extension of such power or authority of the Federal government would be an usurpation of state authority and an encroachment upon its sovereign domain. "[T]he 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 violation of the Federal Constitution. * * * The question whether the conditions prescribed by the state might be regarded by others as reasonable or unreasonable is not a Federal one." Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817. Speaking of the 15th Amendment, the Court in Guinn & Beal v. United States, 238 U.S. 347, 35 S.Ct. 926, 930, 59 L.Ed. 1340, the Court said: "Beyond doubt the Amendment does not take away from the state governments in a general sense the power over suffrage which has belonged to those governments from the beginning, and without the possession of which power the whole fabric upon which the division of state and national authority
The United States answered interrogatories propounded by the defendants and took some depositions out of which the gossipy and irrelevant material found in the last half of the dissenting opinion herein was lifted. This material came from the thesis of a political science student at Ole Miss who was writing for his Master's Degree, probably with no thought of playing such an important and prominent role in a court opinion. It is my firm conception of the law that statements subsequently or even precedently made by a member of a constitutional convention as to its purpose and intent could have no possible legal effect upon the validity of the convention product. What some state Supreme Court judge said in a book on the Mississippi Constitution as to the problems before the convention and its solution of the race problem in the state, certainly could not claim relevancy for its production.
The meaning, intent and purpose of an unambiguous act must be obtained from the act itself and not from the expressions of legislators or their committees. Marche v. United States, (5CCA) 126 F.2d 671. United States v. Ogilvie Hardware Company, (5CCA) 155 F.2d 577. It is never permissible to allow the discussions and views of legislators, friendly or unfriendly to such legislation, to disparage the validity of the ultimate work product of the legislative body. Any such impeachment in such manner of an unambiguous enactment would violate every principal of estoppel. The speeches of a legislator and the discussions of an enactment in committee, or even explanations of a witness before the committee as to the meaning, or intention or purpose of a statute is universally considered a very poor and impoverished source on which to rely to glean the legislative intent. A legislative body is presumed to say what it means, and to mean what it says. It is not within the province of any legislator or member of a constitutional convention to disparage the validity of an enactment of such legislative body by materials of such source. That does not mean to say that a Court should close its eyes and ears to facts and circumstances surrounding an enactment when clarity of expression makes it necessary to resort to extraneous evidence to determine the meaning and intent of an ambiguous statute, or constitutional section. But there is nothing hidden, or concealed or built-in to either of these statutes which would affect its validity. These statutes and constitutional sections here contain nothing invidious, or insidious, as in Gomillion, and in Yick Wo, so strongly relied on in the dissent. These election statutes are paragons of equity of treatment of all citizens of both races alike.
According to the universal rule of statutory construction, there is the very strongest presumption in favor of the validity of each of these statutes. It is a strange philosophy which seizes upon every charge of discrimination and every claim of unconstitutionality in a statute as affording an opportunity if not an open invitation to invalidate such statute rather than sustain it. That presumption of validity must attend every statute throughout the trial of any case and be overcome only by the clearest and most convincing evidence to the contrary. In this case we are met with the extremely tenuous claim that these statutes in this case were bred and born in an atmosphere of inequity and invalidity and such evils inhere therein to invalidate them regardless of the fairness and impartiality with which such laws function and are administered. In Fleming v. A. H. Belo Corporation, (5CCA) 121 F.2d 207, in speaking of Congressional debates as reflecting upon the intent of Congress in an enactment, it is said: "It is just because of this fact, that legislation is
In United States v. Trans-Missouri Freight Ass'n., 166 U.S. 290, 17 S.Ct. 540, 550, 41 L.Ed. 1007, the Court said: "There is, too, a general acquiescence in the doctrine that debates in congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body. U. S. v. Union Pac. R. Co., 91 U.S. 72, at page 79 [23 L.Ed. 224]; Aldridge v. Williams, 3 How. 9-24 [11 L.Ed. 469], Taney, C. J.; Mitchell v. [Great Works Milling &] Manufacturing Co., 2 Story, 648, at page 653, Fed.Cas.No.9,662; Reg. v. Hertford College, 3 Q.B. Div. 693, at page 707. The reason is that it is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other; the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it was passed."
Section 244, Mississippi Constitution 1890 was before the United States Supreme Court in 1898 in Williams v. State of Mississippi, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012, where it was complained that this 1890 convention by this § 244 discriminated against the characteristics and the offenses to which negro members are prone; and that the section contained no standards for use by the registrar in applying his test to a citizen desiring to register to vote and that such discretion was thus unlimited and unreasonable and invalid. Yet, the Federal Supreme Court said that the Mississippi Constitution and laws passed pursuant thereto prescribing the qualifications of the voter and investing administrative officers with a large but sound discretion in determining what citizens have the necessary qualifications, cannot be held repugnant to the 14th Amendment merely on a showing that they operate as a discrimination against the colored race. As the complaint states [paragraph 50(b)] that § 241-A, providing the good moral character requirement provided "an additional device with which registrars could discriminate against negro citizens who seek to register to vote." Such an averment is merely a suggestion of a possibility and nothing more which was discarded by the Court as ineffectual in Williams v. State of Mississippi, supra, to assail the validity of an act. Unless all of these eight state laws are facially invalid, the entire suit must fail. Environment of a legislative body, even an evil intent of its membership and an unlawful purpose cannot serve to invalidate its legislation because thereof. It is not contended or even suggested that all unregistered white people who apply for registration do not have to comply with all of the requirements of this entire package of laws and satisfy and demonstrate to the registrar that they possess all of the qualifications and none of the disqualifications to register to vote. The fact that such laws may discommode or inconvenience a negro citizen or even work a hardship upon him to comply with such requirements to entitle him to register to vote, does not present any constitutional infirmity in such laws. The sovereign State of Mississippi has the right to declare the qualifications of its citizens to register to vote, and every one of the qualifications in this state therefor have been repeatedly approved as valid. Substantially all requirements of the State of Mississippi for registration to vote have been uniformly approved without exception.
This is not a school case. It is not a public accommodations case. These collateral questions may not be desperately drawn into this case to confuse the sharp and clear issues as to the validity vel non of these Mississippi election laws. Statistics are resorted to frequently by those advocates who find themselves without substantial factual support in the genuine issues at hand. Here, much is made in the complaint and in the dissent about only 5% of the adult negro citizens being registered while 67% of the adult white citizens are registered. This Court judicially knows that negroes never manifested any substantial interest in registering or voting in Mississippi prior to a direct appeal to them from President Kennedy to do so. The weakness of such statistics is more apparent when it is realized that the complaint in this case does not undertake to link the registrars with any responsibility therefor and actually assigns no causal reason therefor; doubtless because it could not be truthfully said and certified that very many qualified negro citizens (possessing all of the qualifications and none of the disqualifications) had applied to some registrar to register and had been rejected. Surely, a qualified colored citizen who did not care to register and had never bothered about voting, could not expect to find his name on a registration roll unless he had exerted himself to do the necessary to put it there.
Since the registrars are thus parties to this suit instituted for the sole purpose of having these eight laws in a package declared unconstitutional, and since this case, therefore, does not involve an instance where anyone of these registrars has done anything to wrongfully deny any negro the right to register to vote in his county, it must follow that this Court has no jurisdiction of the sovereign state, and that the complaint fails to state a claim against the other defendants upon which relief can be granted. If this suit were not an attack on the validity of these election laws, but only an attack on the enforcement thereof by these registrars, it would not be a three judge case as it is. It is said in Sealy v. Department of Public Instruction of Penn., et al., (3CA) 252 F.2d 898; cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1149, "Mere attack on regulations or method of enforcement of a statute is not sufficient to justify the interposition of a three-judge court. Ex parte Bransford, 1939, 310 U.S. 354 [60 S.Ct. 947, 84 L.Ed. 1249], William Jameson & Co. v. Morgenthau, 1938, 307 U.S. 171 [59 S.Ct. 804, 83 L.Ed. 1189]."
The election machinery in this state contains every constitutional safeguard against any possible invalidity, including that of due process. Under § 3217-03, Mississippi Code 1942, the registrar "who is an administrative officer of the county in which he serves as registrar" is vested with the full power and authority to conduct administrative hearings and render his decision upon any application to register at the time or he may take the matter under advisement as a court may do. Under § 3217-04, Mississippi Code 1942, provision is made for hearings in the county on such applications to register. He may issue subpoenas for witnesses under § 3217-05. Section 3217-07, Mississippi Code 1942, requires the registrar to have all testimony taken before him to be taken down by a competent reporter and a transcript thereof filed with and retained by him in his office. Section 3217-09, Mississippi Code 1942, provides that an applicant may appear in person or by counsel at such a hearing and may examine or cross-examine witnesses as in the circuit court. Section 3217-10, Mississippi Code 1942, provides for an appeal from any decision of the registrar to the Board of County Elections Commissioners. A general section of the Code provides for a further appeal to the circuit court and even to the Supreme Court of the state. Chapter 573, Mississippi Laws
These Mississippi election laws at bar fairly demonstrate upon their face the recognition and application of all of the rules of fair play and impartial treatment of all citizens of both races alike. The majority opinion and ensuing judgment in this case in its entirety is irrefragably correct and I concur therein.
JOHN R. BROWN, Circuit Judge (dissenting):
In the opening bars, the Court
The resulting facts are not in dispute. Mississippi must candidly admit that no more than 5% of its adult Negro citizens are registered to vote. This means that public rule comes from the 67% of white adults who are. The contest is whether this is the result of discriminatory state "Constitution, laws, customs, or usages" in violation of the Civil Rights Act, 42 U.S.C.A. § 1971(a).
That contest is a big one. It is no little controversy between one or more individual Negro voters and individual Registrars. It is between all Negro adults and the State. Indeed, it is between all citizens of the United States and the State. In that setting, it is fitting that the protagonists appear to be what they really are — the United States and the State of Mississippi. The decisive question is, therefore, whether the United States may maintain this suit and whether it may be maintained against the State of Mississippi. Once that is decided, nearly everything falls into place, or becomes a matter of superficial consequence.
Such consideration of the constitutional attacks will also expose the majority's
Discrimination is, to be sure, an important element of the Government's thesis. But the discrimination sought to be proved, both in practice and in result, has a far greater function. For the Government's theory — which it seeks an opportunity to establish factually — is simply this: The underlying Mississippi constitutional provisions and the implementing statutory law regulating registration of voters came into being — and are currently maintained — out of a purpose by the organized State to deny Negroes the right to vote by contriving a structure having the appearance of legality, but having known, built-in devices which would, and did, effectually deny or overwhelmingly discourage the Negroes' effort toward full citizenship. The immediate means — the understanding test — must be judged, both in its purpose and in its effect, by the segregated policy of education and the wide disparity in the quality and quantity of education afforded by Mississippi to its white and Negro children. Likewise, these registration enactments must be considered against the background of official State action denying an effective use of voting rights by Negroes fortunate enough to be registered. One interesting facet of this Grand Design is the speed and apparent effectiveness of the State's reflex to Federal Court decisions or congressional enactments which tend, or seem, to restore some small portion of the Negro citizens' rights.
The United States May Sue
As I read Part IX, the majority declares that this character of broad attack may not be brought by the United States because it has not been "expressly authorized to sue by Act of Congress." 28 U.S.C.A. § 1345. To avoid some supposed constitutional restrictions on the right of the national sovereign to authorize itself to sue in its own Courts to protect the rights of its citizens, the majority reads 42 U.S.C.A. § 1971(c) and (d) narrowly. This leads to the conclusion that although Congress has authorized suits by the Government to protect identifiable individuals from actual or threatened discrimination by identifiable State officials in the administration of valid laws, the Government may not, under this statute, maintain a suit attacking the constitutionality of statutes or State constitutional provisions which bring about like discrimination, only wholesale. An odd reverse of the discarded notion that "The King Can Do No Wrong," it is a declaration that an indestructible nation can right only little wrongs, not big ones.
There are a number of answers which may be briefly put. First, I can conceive of no constitutional hazard. The Fourteenth and Fifteenth Amendments are ample resources if specific legislation is required. I would have considerable doubt that specific legislation is needed. Jurisdiction, as such, while always a threshold question, is here of no moment. Whatever might be the affirmative grant of jurisdiction, it is clear that Congress has not prohibited such suits. The proviso of 28 U.S.C.A. § 1345 is thus irrelevant, and the balance of the section imposes no requirement that a suit "commenced by the United States" be expressly authorized by an Act of Congress. This latter requirement is confined to suits commenced "by any agency or officer" of the United States.
But none of these problems exist here. Congress has laid down the substantive standard in § 1971(a), has prescribed the machinery to effectuate such rights in § 1971(c) and has invested the District Courts with jurisdiction by § 1971 (d). Under this structure whenever "any person," which includes the State, is engaging "in any act or practice which would deprive any other person of any right * * * secured by subsection (a) * * * the Attorney General may institute * * * in the name of the United States, a civil action or other proper proceeding for preventative relief * * *."
Without a doubt the Government can be the adversary to champion the rights of its citizens who are the victims of state discrimination, United States v. Raines, 1960, 362 U.S. 17, 27, 80 S.Ct. 519, 4 L.Ed.2d 524, 533,
What is at stake is the right of disfranchised Negroes to parity of treatment so that the bare 5% of Negro registrants may approach equality with the 500,000 white registrants (67%). If — and to resolve that if a trial is sought — the disparity is due to discrimination,
The State of Mississippi May Be Sued
The majority's conclusion that Mississippi may not be sued is a curious one. Beset by similar constitutional apprehensions, the majority — as it did in dealing with the right of the United States to sue — reads § 1971(c) narrowly to avert a declaration of unconstitutionality. But having done this, it comes out at the same place by holding that, the State being a perfect idealism, Congress may not constitutionally impute to it as its own act and deed the actions of its official representatives. Thus is § 1971 (c)
The statute is plain and for this case it is plainly constitutional. Two things are accomplished by § 1971(c). First, as a substantive matter, it declares that "any act or practice constituting a deprivation" of subsection (a) rights committed by "any official of a State or subdivision thereof" shall "be deemed that of the State." Second, it provides a procedural remedy to enforce that substantive right. It does this by prescribing two things: (a) the "[s]tate may be joined as a party defendant"; and (b) if there is no person holding the office capable of being sued as a defendant to which the state may be joined, then "the proceeding may be instituted against the State." (Emphasis supplied.) Thus there is no room, or need for, statutory construction to determine when a state may be joined with other defendants.
A state has no general immunity from suit by the national sovereign. United States v. Texas, 1892, 143 U.S. 621, 642-646, 12 S.Ct. 488, 36 L.Ed. 285.
The fact that in the brief per curiam so heavily stressed by the majority, the Supreme Court in United States v. Alabama, 1960, 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982,
The majority's conclusion of unconstitutionality rests on what may best be described as the Eleventh Amendment dialectic. Underlying this approach is the literal extension of the philosophic discussions of political economy of the kind found in Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714.
Were this the inevitable consequence of fictions — useful as they are for solutions of some of the law's formal incongruities, cf. Douglas, J., dissenting in Parker v. Ellis, 1960, 362 U.S. 574, 595, 80 S.Ct. 909, 4 L.Ed.2d 963 — a good deal of judicial history would have to be erased. Worse, it would close the courthouse to the resolution of conflicts between the national and state governments whether they concern ownership of offshore tidelands, United States v. Texas, 1950, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221, or interference with the orders of a Federal Court.
This is not the case in which ordinary actions of Government officials perhaps in excess of authority are sought to be imputed to the State to make the State directly responsible therefor. Here the actions taken by individuals relate to a function which is governmental in nature and wholly unrelated to private, personal
These principles are more than ordinarily applicable if the basic theory of the Government's suit is kept carefully in mind. Unlike those charging that Negro voters are deprived of constitutional rights because of discrimination in the administration of otherwise valid statutes, the thesis is here that these voter registration laws (and Constitution) are themselves invalid because, in their setting, they established a structure which was intended to, and in fact did permit effectual denial to the Negro of the right to vote, the final proof of which, being in the pudding's eating, is the disparate results of 67% vs. 5%. On such a theory, it is conceptually impossible for statutes (and constitutional provisions) to be anything other than State actions, as the State, by the State, and for the State. Everything under attack here — the understanding test, promulgation of the registration application form, the duty to fill it out without assistance, prohibition against advice concerning errors, the good moral character test, the right of citizen challenge — are all strictly prescribed in the Mississippi Constitution and statutes. Acts done thereunder are truly acts of the State, not merely State actions by individual persons.
Substantively, there can at this late date be no question of the constitutional power to charge the State directly for denial of voter rights accomplished by the statutory structure or its administration. Under § 1971(a) the right is guaranteed to vote without distinction of race "* * any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding." Discriminatory State Constitutions and laws which were found to be unconstitutional in themselves have been voided by the Supreme Court pursuant to this subsection.
The rich experience in voter discrimination affords an ample basis for the conclusion that there is a reasonable connection between the congressional determination that in voting suits, the acts of local representatives of government may be deemed to be the acts of the State on the one hand, and the rights to be secured under the Fourteenth and Fifteenth Amendments on the other. The scope of congressional power under the Fourteenth and Fifteenth Amendments
Majority Applies Incorrect Standards for Dismissal
While professing to follow the standards epitomized in Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80,
The majority is preoccupied with two things, each contrasting the other. Its approach emphasizes that the allegations must be of facts, as distinguished from legal conclusions. This becomes vital to its thesis since technically it is said the motion to dismiss admits only facts well pleaded.
But I do not press this as a technical principle because the complaint charges discriminatory purpose and effect in the most positive, direct and simple terms. For example, after reciting factual, statistical and historical details in the first 15 paragraphs, it charges that "one of the chief purposes" of the newly adopted Constitution of 1890, "* * * was to restrict the Negro franchise and to establish and perpetuate white political supremacy and racial segregation in Mississippi." This was accomplished, the complaint charges, through the understanding clause. The complaint goes on to allege that later, under the stimulus of a decision of the Fifth Circuit
After factually alleging developments in the court proceedings, the complaint goes on to state that to overcome specific provisions of the Fifth Circuit's injunctive order — especially those requiring assistance to Negro applicants on an equality with whites — the Mississippi Legislature enacted a package of laws.
Of course these serious charges cannot be brushed off as "legal conclusions." The majority takes a double tack to circumvent them. The first seems to be that the truth of these charges — i. e., discriminatory purpose and effect — is of no legal consequence since this goes to the motivation of legislation and this is a subject free from judicial scrutiny. If — and the if is a very tiny one — that ever were the law, Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed. 2d 110, now makes it clear that unconstitutional racial discrimination gets no cloak of judicial immunity simply because the means used is State legislation. The supposed "motivation" of the legislators is no haven and affords no insulation from judicial inquiry.
The second seems to be that, assuming them to be legally significant, there are no possible evidentiary ways of establishing the truth of the charges. The majority reasoning in this facet seems to run this course. The Government by pretrial interrogatories from the defendants was required to state the exact factual basis for these charges, the witnesses to be used on the trial in support thereof, etc. The Government filed detailed responses and presumably put its best foot forward. Consideration of these materials by the Court reveals that these "facts" cannot be established since all of this is either hearsay or otherwise inadmissible.
This is far from saying, however, that the interrogatories are irrelevant at this stage. Quite to the contrary, once the proper standard is applied, these become the best proof that the Government has at least an arguable basis for establishing its claim on a trial. This brings us to the simple standard of Conley v. Gibson
Abundant Likely Evidence to Establish Prima Facie Case
A consideration of a very small part of the material will illustrate the substantial basis for the Government's claim. This material both acquires a meaning from its setting and offers additional proof of that setting. This is vital as the Supreme Court, analyzing the holding in Davis v. Schnell, S.D.Ala., 3-Judge (81 F.Supp. 872, 1949, aff'd mem., 1949, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093) which struck down an "understanding and explain" test had this to say. "The
Discriminatory Purpose of 1890 Constitution
On February 5, 1890, Mississippi Legislature called for a constitutional convention to revise the Constitution of 1869.
The Negroes' presence in the State posed a real problem. Constituting 53.7% of the population in 1870, the Negroes represented 57.6% in 1890. Whites were in control throughout the State, but not without some difficulties which one of the delegates described as "preserving the ascendency of the white people by revolutionary methods" consisting, "in plain words" of "stuffing ballot-boxes * * * carrying the elections by fraud and violence until the whole machinery for elections was about to rot down." Anticipating the Convention, Senator George outlined its work. "Our first duty", he is reported to have said, "is to devise such measures, consistent with the Constitution of the United States, as will enable us to maintain a home government, under the control of the white people of the state."
From the opening note of the Convention, the theme was the single one. President of the Convention, Calhoon, described the race for racial supremacy as "one of the problems you have to encounter" and their challenge was to so arrange "this ballot system * * * as to effect one object." He was soon to spell that out. The temper of the Convention was reflected by the Resolution of the Preamble Committee. It first recited
One delegate referring to the large adult Negro population of "70,000 * * in excess of the white vote" declared it to be their duty to prevent the Negro majority from overthrowing the present civil government, and then offered a solution in this exclusive method: "How is this end to be accomplished? Only, in my judgment, by such an adjustment of the basis of suffrage as will secure to the white race a fixed and permanent majority. The white people * * * want to feel and know that they are protected * * * against * * * the possibility of Negro rule * * *. They demand this at our hands * * * and nothing short of this will satisfy them or excuse us. The remedy is in our hands. We can if we will afford a safe, certain and permanent white supremacy in our state." Another delegate recognizing that "the powers of government are politically and constitutionally lodged in the Negro race" declared that "the paramount object of this Convention is to transfer it to and invest it in the white race." Apart from repeal of the Fifteenth Amendment "this could be accomplished" in several ways, one being "by an educational * * * qualification." Others echoed. "That is what we are here for today to secure the supremacy of the white race." With poetic overtones, one remarked, "We are embarked in the same ship of white supremacy, and it is freighted with all our hopes." And President Calhoon made crystal clear the more generalized eloquence of his opening address. Of the Negroes, he is reported to have said: "We want them here, but their own good and our own demands that we shall devise some means by which they shall be practically excluded from government control."
These contemporary views of the delegates are borne out by the long look of history. There have been at least two reunions of the surviving delegates of the Constitutional Convention, one in 1910, another in 1927. These proceedings clearly reveal the purpose of the Convention. The "primary purpose of it was to adopt some provision * * * which would secure to the State a good and stable government, freed from the incubus of Republican or negro rule. * * * All understood and desired that some scheme should be evolved which would effectively remove from the sphere of politics in the State the ignorant and unpatriotic Negro. * * *."
Judge Thompson, one of the delegates, after remarking that there was "scarcely a conceivable scheme having the least tendency to eliminate the Negro vote that was not duly considered by the convention" then declared, "It is regrettable that all the suggestions * * * were not recorded; had they been preserved, the record would be a monument to the resourcefulness of the human mind."
One delegate reciting in detail the problems besetting the State described the four-step structure of legislative apportionment (districting to favor white counties), the electoral plan for the Executive and Judiciary, limiting Negro suffrage by the annual poll tax, and the adoption of the understanding clause. He concluded that these "several suffrage requirements combined" have "as they were intended, reduced the Negro majorities to a negligible political quantity." He then characterized the problem and its solution in these doleful terms. "Concisely and correctly summed up, of the two ills Mississippi chose the lesser. She has exchanged an organic malady for a functional disorder. The Convention substituted a desiccated for a diseased electorate. The ensuing ills of the present state are within the check and correction of the white citizens."
The Understanding Test
The understanding test was early proposed. Despite the considerable advantage this would work in favor of the whites because of the lower white illiteracy rate (white — 11%; Negro — 76%), some, opposing it, expressed the "fear [that] it will lead to trickery and fraud." Adopting this test "placed in the hands of the officer who is to apply the test the power to defraud and disfranchise." Recognizing in those early days what Negro applicants in the Twentieth Century were to experience
One of Mississippi's distinguished legal scholars and Justice of its Supreme Court, George H. Ethridge,
The White Man's Democratic Primary
Few as they are, difficult as it is for them to become registered, Negro voters are effectually excluded in the elective process through the means of the democratic primary.
Beginning in 1902 with the statutory advent of primaries,
Perhaps forecasting like indifference to the school decisions ten years later, the decision by the Supreme Court in 1944 holding "white primaries" to be unconstitutional
This "do nothing" plan seemed to work.
But the "do-nothing policy" did not long prevail. In 1947 the Mississippi Legislature enacted laws to require that in order to vote in a primary, participants must be in accord with the principles of the particular party.
The answers show by name, date, place and county that the system worked. Negroes trying to vote in primaries were successfully challenged. This continues up to the most recent primaries of 1962. Typical, though spectacular, was the incident in the August 1955 primary and run-off in the all-Negro town of Mound Bayou, Mississippi, Bolivar County. Accompanying the ballot boxes was a written challenge signed by each of the candidates challenging all voters from this precinct (known to be Negroes only) as such voters were not in accord with the declared principles of the Democratic Party.
Separate But Not Equal Education for Negroes
Segregation of the schools, as such, may not appear to be directly involved in voter registration. Certainly a voter registration case cannot be made the vehicle to bring about this change in state custom and practice. But in the massive assault on voter registration here, it is a direct element of the Government's thesis. The charge is that the understanding test, as first conceived in Miss. Const. § 244 and as later amended in 1954 to include read and understand, was, and is, a ready mechanism to disfranchise the Negro because of inferior education. It is the inferior education, not its segregated characteristic, that is important. Any appraisal of the quality of education must, of course, reckon with the open, frank policy of segregation.
Although Negro children of school age have always exceeded the number of white children,
This is not a mere matter of statistics. The responsible officials of Mississippi have publicly recognized the disparity in educational facilities and the necessity for substantial improvement.
And various official biennial reports of the State Superintendent of Public Education have portrayed this great disparity in graphic terms. Over a wide space of years, they pinpoint the causes. For example, "in many counties * * Negro children are forced to attend school in mere shacks or in church houses."
Teacher quality for Negroes suffered from lack of adequate colleges. As a consequence "the quality of work done in the school room by the majority of negro teachers would not rank very high when measured by any acceptable minimum known to the leaders in educational thought."
As late as 1937 "ninety-four percent of the educable Negro population of high school age" were "not in school * *."
All of these findings have been confirmed by various professional studies, including those for the University and the State Legislature.
The 1890 Plan Has Worked
In the field of racial discrimination, figures do count. Figures tell the best, if not the whole, story. United States ex rel. Seals v. Wiman, 5 Cir., 1962, 304 F.2d 53, at 66, 67.
Of course there might be several explanations for these figures. One might be that this is what the Negroes want. Another might be that this is just accidental. A third might be that this proves the effectiveness of a carefully contrived plan to exclude the Negro. A choosing from those possible inferences is not a function of pleadings or a motion to dismiss. On a motion to dismiss, the Court cannot, for example, declare that this is all one of nature's accidents. And in the face of other evidence which the Government proposes to offer, it cannot be charged off at this early stage as voluntary conduct by many thousands of adult Mississippi Negroes. For in like response to interrogatories seeking factual basis for the allegations in the complaint that Negroes have regularly, consistently been denied the right to register or vote or both, the Government, citing chapter, verse, county, date, time, name, and circumstance, has identified thousands of Negroes who have sought but who have been denied these rights.
That inference, once drawn, after a trial either as a matter of fact or as a matter of law, will go a long way — if not the whole way — toward establishing that the entire voter-registration-voting structure is invalid, not because it has been discriminatorily applied, but because it was meant to work that way and has.
Meeting the Exigencies From the Law's Reverses
The rapidity with which even the slightest breaches in this Maginot Line were closed demonstrates a continuing purpose, not only to institute but to maintain a structure of discrimination. Only brief mention may now be made of some of the more vivid of these.
And For Or
The first is the amendment to § 244 to prescribe a read and understand test. Though Peay v. Cox, 5 Cir., 1951, 190 F.2d 123, opened up the door to Negroes who could read or understand, the effort in 1952 to amend the Constitution was unsuccessful. In 1954 the full impact was soon realized under the pressure of the 1954 Supreme Court school decision. With effective aid from White Citizens Councils, both the voter registration amendment and the school amendment giving the Legislature the discretion to maintain public schools were adopted.
Was this action just a coincidence? Or was it an immediate and effective response against the possibility that the great number of under-educated adult Negroes, the product of segregated schools then acknowledged to be inferior, would now at least be eligible to orally state an understanding or interpretation? And if not now, would they not in the early future be eligible as more and more Negroes would receive an education of equal quality as a result of "integrated" attendance at formerly all white schools? At this stage of the proceedings, the minimum called for is a trial. For if those were the purposes, then Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, would permit both judicial inquiry into, and judicial redress for, such racial discrimination.
The 1962 Package
The complaint describes in detail the Government suit against Registrar Lynd, Forrest County, including the appeal, the injunction pending appeal by the Fifth Circuit resulting thereafter in contempt orders, hearings, judgments and affirmance.
The Lynd case essentially charged discriminatory application of laws otherwise assumed to be valid. One of the principal weapons for discriminatory administration was the registration application form.
Those sections of the Mississippi Constitution given frequently to Negroes but never to whites were § 112,
The Lynd case centered about the use of the application form. In the injunction pending appeal (later affirmed), the
Typical of the immediate response was Miss.Laws 1962, Ch. 570. Prior to the amendment, this section required that an applicant fill out the application form without assistance or suggestion from any person. The amendment added that the requirements of the statute were mandatory; that no application shall be approved or the applicant registered unless all blanks on the application form are "properly and responsively" filled out by the applicant; and that both the oath as such and the application form must be signed separately by the applicant. And to inject a new standard which would defy a Federal Appellate Court determination that particular applicants were qualified as a matter of law,
No Legal Obstacle to Relief
When the true nature of the Government's theory is kept in mind, none of the legal arguments advanced by the majority serves as a stumbling block.
If from evidentiary materials, the Government establishes
Apparent validity on the face of such enactments will be of no significance. Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; and see Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Lane v. Wilson, 1938, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281. Hence cases such as Williams v. Mississippi, 1898, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012, and Darby v. Daniel, S.D.Miss., 1958, 168 F.Supp. 170 which the majority (see Part XII) stresses as a holding "on the face" are of little consequence as precedents or for persuasiveness.
The extended preoccupation of the majority (see Part X) with the thesis that voter qualification is exclusively committed to the states is neither accurate nor significant. All bends to the Federal Constitution.
Nor could the elusive, undefinable "good moral character" test (see Part
Finally, nothing in Lassiter v. Northampton County Board of Elections, 1959, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, affords any basis for supposing that either a literacy test or an understanding test is free from attack when purposefully chosen to deny, not grant, voter privileges.
Discrimination against Negroes, on the Government's theory, has not resulted from discriminatory administration of valid laws. It has happened because it was meant to happen. To eradicate this evil, the attack need not be made piece by piece. It may be made by a frontal assault on the whole structure. What the Government is saying is that Mississippi knows that this was the purpose, and now all it wants is for the Court to see what "[a]ll others can see and understand,"
I therefore respectfully dissent.
After a change in the personnel of the Court, another hearing with counsel was held and full argument was invited in which each litigant urged the procedures he thought desirable. The defendants had filed, prior to their answers, a number of motions attacking the constitutionality of some of the statutes relied upon by the plaintiffs when given the constructions placed on them by the plaintiff; and each defendant had filed a motion to dismiss the claim against it or him, on the ground that the complaint failed to state a claim, that the Court did not have jurisdiction of the subject matter or of some of the parties and had moved that they be heard in advance of any trial on the merits.
Following that argument and after correspondence between the Judges, two additional conferences were had. The plaintiff had answered in large volume the interrogatories propounded to them by certain of the defendants and had taken a number of depositions, but had not completed its discovery procedures. The defendants were claiming the right, if their motions to dismiss were denied, to begin their discoveries and to take the depositions of each of the registrars in the State of Mississippi or of prior registrars. It further appeared that no matters outside the pleadings had been presented to the Court, that no motion for summary judgment under Rule 12(c) had been made or the propriety of it suggested, and that no affidavit or counter affidavits had been filed which complied with the requirements of Rule 12(c) and 52 F.R.Civ.P. It was further found that the interrogatories had been answered and sworn to by various attorneys for the plaintiff and set forth the results of their investigations and were made up of legal or factual conclusions from hearsay evidence or were otherwise inadmissible in evidence.
We concluded that the case could be heard and decided much more expeditiously by considering the complaint and all well-pleaded averments, stripped of legal opinions and conclusions, as factually true and could reach a decision in keeping with accepted legal principles and could do justice to the parties as completely as if the contents of the answers to interrogatories and the depositions should be considered.
The defendants have pressed their motions to dismiss, claiming the right to be heard before trial on the merits on such grounds as failure of the complaint to state a claim, nonjurisdiction of the subject matter or the parties, and like questions. We concluded that this position was sound and in the interest of justice and have therefore disposed of the case on the face of the pleadings, having rejected all of the depositions and interrogatories and the answers thereto (although none of them were ever offered in evidence or presented to the Court).
We think this is not in conflict with such cases as Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. Compare KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183; Battaglia v. General Motors Corp., 2 Cir., 169 F.2d 254, certiorari denied 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425; Flanders v. Coleman, 250 U.S. 223, 39 S.Ct. 472, 63 L.Ed. 948; Rhode Island v. Massachusetts, 12 Pet. 657, 659, 37 U.S. 657, 659, 9 L.Ed. 1233.
"(d) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether the party aggrieved shall have exhausted any administrative or other remedies that may be provided by law. [71 Stat. 637, Sept. 9, 1957.]"
"Except as otherwise provided by the Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress. June 25, 1948, c. 646, 62 Stat. 933."
"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title. June 25, 1948, c. 646, 62 Stat. 968."
"Intimidation, threats, or coercion
"(b) No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or 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, Delegates or Commissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate.
"Preventive relief; injunction; costs; State as party defendant
"(c) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. In any proceeding hereunder the United States shall be liable for costs the same as a private person. Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State. [74 Stat. 90, May 6, 1960.]"
"The registrar shall register on the registration books of the election district of the residence of such person any one appearing before him, and being, upon examination, found, in compliance with Section 244 of the Constitution, as amended, and in compliance with Section 241-A of the Constitution of Mississippi to be entitled to be registered as an elector, upon such person taking and subscribing the oath required by Section 242 of the Constitution of Mississippi; but persons who may be entitled to register under the provisions of Section 251 of the Constitution of Mississippi, who would be otherwise disqualified by reason of age, may take the oath as modified by that circumstance, and the subscription of the oath shall be by the elector writing his name in the proper column in the registration book."
We draw extensively from this paper in this portion of the opinion. Dr. Ritz cited many times from Farrand, "The Records of the Federal Convention of 1787," 4 Vols. (Rev. ed. 1937).
While the article deals alone with the power of Congress, most of its contents apply equally to the Courts.
"The person applying to register shall make a sworn, written application for registration on a form to be prescribed by the state board of election commissioners, exhibiting therein the essential facts and qualifications necessary to show that he is entitled to register and vote, said application to be entirely written, dated and signed by the applicant in the presence of the county registrar, without assistance or suggestion from any person or memorandum whatever; provided, however, that if the applicant is unable to write his application by reason of physical disability, the same, upon his oath of such disability, shall be written at his unassisted dictation by the county registrar.
"Any new or additional qualifications herein imposed shall not be required of any person who was a duly registered and qualified elector of this state prior to January 1, 1954.
"The Legislature shall have the power to enforce the provisions of this section by appropriate legislation."
"Section 241-A. In addition to all other qualifications required of a person to be entitled to register for the purpose of becoming a qualified elector, such person shall be of good moral character.
"The Legislature shall have the power to enforce the provisions of this section by appropriate legislation."
"When a word or phrase in a statute or constitution is ambiguous, it is the duty of the court, in construing the meaning of that word or phrase, to attempt to determine whether an exact meaning was intended and if so, to ascertain that meaning." (Emphasis added.)
"The applicant's literacy and understanding of other subjects shall be determined solely on the basis of answers included in the report of the voting referee."
"[T]he remedy is wholly administrative, simple, and cheap and ought to be exhausted plainly."
But the Court earlier had stated: "It should be recalled that the State of Alabama is a party to this action and is responsible for the discriminatory acts and practices of the registrars. This is expressly provided for in 42 U.S.C.A. § 1971(c) as amended by the Civil Rights Act of 1960, § 601(b)." 323 F.2d 733, 739.
"[We further find] that the interrogatories [have] been answered and sworn to by various attorneys for the plaintiff and set forth the results of their investigations and [are] made up of legal or factual conclusions from hearsay evidence or [are] otherwise inadmissible in evidence." Majority Opinion, Introduction 2, n. 1.
Part and parcel of this program is the State Sovereignty Commission, Miss. Code of 1942, §§ 9028-31-48 [Laws 1956] of which the Governor is the Chairman. It is charged with the duty "* * * to do and perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Mississippi * * * from encroachment thereon by the Federal Government or any branch, department or agency thereof * * *." Miss.Code of 1942, § 9028-35. Segregation is specifically ordained for: Public schools: Miss. Const., 1956, art. 8, § 207; Miss.Code of 1942, §§ 6220.5 (integration is a criminal offense), 6766, 6475-14, 6336-05, 6336-06(a). Public transportation and terminals: Miss.Code of 1942, §§ 2351.5, 2351.7, 3499, 7784, 7785, 7786, 7786-01, 7787, 7787.5. County and municipal jails and state prisons: Miss.Const. § 225; Miss.Code of 1942, §§ 3374.5, 4259, 7913, 7971. Insane and charity hospitals: Miss.Code of 1942, §§ 6881-83, 6927, 6973-74. Further, it is a crime to conspire to overthrow the segregation laws of the State, Miss.Code of 1942, § 2056.
Meredith's admission to the University of Mississippi produced a flood of like enactments. H.B. 2, First Extraordinary Session, 1962, 7 Race Rel.L.Rep. 1247 (1962), provides that "every word spoken * * * and every official act done * * * heretofore or hereafter by any officer, agent or employee of the State of Mississippi in anywise connected with or incident to keeping the Institutions of Higher Learning and the public schools and colleges of this state racially segregated * * * is hereby declared to be and established as the sovereign act or acts of the sovereign State of Mississippi * * * and not the individual act of such person * * * and shall be given full force and effect as the substantive law of this state as the official sovereign act * * * of this state and not the private or individual act * * * of such persons * * *." House Concurrent Resolution No. 18, First Extraordinary Session, 1962, 7 Race Rel.L.Rep. 1248 (1962), recites the developments on the admission of James H. Meredith and the use of federal troops, and petitions the Government of the United States for a redress of grievances including the removal of Meredith from the University.
(1) An understanding test
(2) Careful districting of white versus black counties
(3) An electoral system to preserve white control on executive and judicial elections
(4) Use of the pure white democratic primary and
(5) Restriction of party membership.
These principles, legislatively approved, declared among other things: "We believe in the segregation of the races and are unalterably opposed to the repeal or modification of the segregation laws of this state, and we do not favor the practice of nonsegregation."
Year White Negro1890 207,652 292,581 1910 301,548 410,089 1929 379,678 493,987 1949 393,804 492,349 1960 329,215 337,871
1900- 1929- 1939- 1949- 1956- 1960- 1901 1930 1940 1950 1957 1961 _____ ______ ______ ______ _______ _______ White $8.20 $40.42 $31.23 $78.70 $128.50 $173.42 Negro 2.67 7.45 6.69 23.83 78.70 117.10
The following are selected comparisons of expenditures above the state minimum program listed on a per child basis:
District White NegroAmite Co. $ 70.46 $ 2.24 Benton Co. 59.42 15.63 Claiborne Co. 142.64 19.88 Coahoma Co. 139.33 12.74 Hinds Co. 80.24 10.41 Leflore Co. 175.38 9.52 Madison Co. 171.24 4.35 Yazoo Co. 245.55 2.92
During 1954-1955 every school district spent more for whites than Negroes. It ran from a high of $600, Glenwood District, Tallahatchie County (whites) to a lot of $45, Senatobia District, Tate County (Negroes) averaging as follows:
White Negro Per Pupil Per Pupil
Cost CostCounty average $161.00 $ 87.00 Separate district average 181.00 106.00
Even these figures may be deceptive. In the Report of a Study of the Education for Negroes in Sunflower County, Mississippi (Bureau of Educational Research, School of Education, University of Mississippi: March 1950), it was pointed out, at 134-35, "Sunflower County in 1939-40 received $73,626 per capita fund. Since 79 per cent of the educables at that time were Negroes, $58,165 was the amount received on the basis of the Negro children. However, only $35,564 was spent for `instruction' for the Negro children. Evidently $22,601 of this amount was expended elsewhere — probably on the schools for the whites. In the last two years the difference in the amount received and the amount [not spent for Negro children] is more than twice the $22,601 figure."
Number Number Number Number Consolidated Unconsolidated One-teacher Two-teacher
Schools Schools Schools SchoolsWhite 959 789 515 202 Negro 16 3484 2411 832
As for another era (see note 76, supra), those "schooled" in the 1955-57 era are important. Those then attending (grades 1 through 12) span birth years of 1939-1951. Negroes born during that period comprise approximately 24.6% (226,500) of the 1960 Negro population. See United States Bureau of The Census, United States Census of Population 1960, General Social and Economic Characteristics, Mississippi, Final Report PC (1)-26C, Table 37, at 26-112.
June 1962 Whites NegroesNumber Number County Over 21 Registered % Over 21 Registered %Panola 7,639 5,309 69 7,250 2 .028 Tunica 2,011 1,436 71 5,822 42 .72 Marshall 4,342 4,162 96 7,168 57 .8 Yazoo 7,598 7,130 93.0 8,719 256 2.9 Copiah 8,153 7,533 92.0 6,407 25 .39 Madison 5,622 5,458 97 10,366 121 1.1 Clarke 6,072 5,000 83 2,998 1 .03 Tallahatchie 5,099 4,330 85 6,483 5 .07 Holmes 4,773 3,530 70 8,757 8 .09 Kemper 3,113* 3,224* 100 3,221 30 .9 Forrest 22,431 12,655 57 7,495 22 .3 Lamar 6,489 5,593 91 1,071 0 0
* This is as reflected in the answers. Doubtless one or the other figure is in error.
This illustrates also the significance of evidence of discrimination on the Government's theory. It is not to show discriminatory application, but to show the result of a discriminatory structure.