*1 refusing ad- them defendants good re- faith acted in mission had passed after liance statute entry injunctive order they defiance of intend “did not adjudging injunction”. them Instead of providing contempt, therefore, might purged contempt ad- mitting schools children to they application, he took which had entering an order milder course of defining required of specifically what which order defendants giving oppor- them been violated avoiding contempt
tunity citation complying order so entered. with the nothing There is in this justly complain.
can
Affirmed. REDDIX, Appellant, I.
Dr. John Voters, LUCKY, Registrar
Mrs. Parish, Appellee. Ouachita
No. 16688. Appeals Court of
United States Fifth. Circuit.
Feb.
Rehearing Denied March *2 Jr., La., ap- Sharp, Monroe, James for
pellant. Fudickar, Lassiter, Fred Jr., P. Albin Monroe, La., George Ponder, M. First Atty. Gen., Gremillion, Asst. Jack P. F. Atty. Gen., respondent. for BORAH, TUTTLE, Before and Judges. CAMERON, Circuit Judge. TUTTLE, Circuit summary appeal This is from a an defendant, judgment the in favor the Registrar Parish, of Voters of Ouachita damages Louisiana, in an action for and injunction for an Constitution the Rights and the Civil Statutes the forbidding abridg- United States voting ment on account race or color. complaint, appel filed on
lant Negro behalf of himself and all other Parish, voters of Ouachita summarily challenged April been May, 1956, strongly construed most pleader, be, in favor of the as it must substantially following allega makes : tions duly appointed The defendant was the
registrar acting voters, officially as Negro such; plaintiff was a citizen and registered Parish; April voter 26, 1956, plaintiff’s remain challenged,1 rolls of voters as accumulated, 1. Under Louisiana Statutes there are least six names have provisions any two under which a within event more five extremely summary may days mailing of nature be notification, after shall qualifica publish segregating to a voter’s a notice such names precinct, requiring tions. Title Section LSA-Ite ward and Louisiana, provides registrants appear vised Statutes office prove registra- follows: the correctness of their registrar publication appear “Whenever reason has tion. The shall in the any journal, expense believe that name the books of official at the registration illegally parish municipality, been may has or fraudu- case lently placed therein, any person be, days, except or that two consecutive thereon, paper daily published, lost to remain where no immediately notify person case, publication he shall which latter one shall by mail, appearing upon sufficient, paper published at his address if no precinct register, parish, publication ir- one in a news- regularity sending registration, paper general therein, pro- circulation printed requir- publication the notification ing citation vided no shall be made on a appear person days Sunday. publication require within ten shall mailing registrants appear notice and cita- within three tion, days publication prove which date shall be stated last citation, why registration. to show cause his name of their correctness If the precinct registrants appear should not be erased from the fail within three register. registrar, days publication, as soon as at from the date last May Negroes 3,000 dur the defendant closed office other process more I2th and ing refused to April period 1 to Negroes to,the thereafter; plaintiff went and 2500 *3 May of- and defendant’s office on 15th disqualified from the were and struck challenge, “purge answer but was of fered to the this rolls as result of the by refused her on basis the books the voters,” constitu in of their all violation ;3 challenge of closed “because of the number rights; were con tional the persons trying daily to around office wholly race; her the on of ducted the basis registra- prove challenges the correctness of their mailed more defendant plaintiff get tion, office could not in the hun her office accommodate and could date, got before the even Negroes above mentioned her dreds of never into though many com- he tried times.” The the office to within answer the plaint by such although period allowed, they the defendant short tried purging of the to requirements acts as are attributable so;2 of to do Section the rights her investigation has violated the constitutional 133 as reasonable abridged plaintiff; with; the “she has complied did not defendant privileges give his as a and immunities proper publication [sic] in and notice the citizen of the United and newspaper, States as in Section equal protection him denied as law publication the last was on and 11th by tration rolls affidavit of bona three days or within ten from the date mail- registered pro- fide voters the form as ing notice, later, whichever date is registrar vided in R.S. shall 18:132. registrar shall at once cancel the immediately publication, make a similar precinct register names from the and provided 18:132, for in R.S. and if the make a note thereon of the date can- registrants challenged fail, within the However, registrants cellation. if the delays provided Section, same prove in that appear person within the time afore- right rolls, their to remain on the said, proof by is submitted them in provided, registrar inas that Section signed an the form of affidavit sworn pre- shall erase their names from the registrar deputy to before the or his register.” cinct three bona fide voters of the parish, persons legally such are en- regis- titled remain on the books of paragraph complaint alleges in 2. The tration, their names shall remain as Negroes were denied hundreds of “that precinct register, voters on the or- unless right prove their certification court, dered erased therefrom order of right their remain on the rolls because provided in this Part. provided by expired section had time 132 above though they quoted even provides challenge by Section 133 for a days and in line several could stood others as follows: get number because near office signed “Upon affidavit and sworn to trying persons chal- to answer their reg- duplicate and filed with the [sic]; registrar lenge closed deputy by any two bona istrar or May 12, to- on refused office parish, registered voters fide any though Negroes process even more investiga- after reasonable the effect con- stood around officeand hundreds information and belief and on certain tion purpose for the to come back tinued protecting rolls; illegally registered, persons or have are right their to remain on precinct, in the vote lost their several that for the reasons parish ward, regis- in of removal or are which paragraph and twen- stated this otherwise, reason tered (2500) ty-five hundred immediately, or, registrar shall disqualified remain on roll of were hours, forty-eight notify event, within registered voters defendant.” by mailing post- registrants to them given age prepaid, at the addresses im- closed for an register, duplicate copy had been precinct books 3. The election, Primary did affidavit,together printed pending a cita- challenges processing prevent appear person requiring them to not if the tion timely appeared challenged registrar deputy voters or Ms within before the ten registra- mailing No days new statutes. from date of the elec- duplicate citation, until after the bo made could affidavit and citation, be stated in date shall tion. regis- prove their remain 12(b) (14th) F.R.C.P., provided Rule fourteenth U.S.C.A. findings specific court fact, detailed to the Constitution amendment disputed States; further several of which United that defendant issues, City vote in the “from him concluded that denied pleadings Mayor Monroe, the 22nd there are election on file affidavits genuine deny- pre- no day May, presently issues of material fact 1956 and ing record,” represent sented summary and entered a [sic] him class he and the judgment defendant. for the the above enumerated they all Negro members of race and are It to be noted that the trial court precious because his race has been grant judgment ground did not on the *4 slavery, of condition all violation [sic] allege complaint did a claim (15) of of the fifteenth amendment granted on which relief be could or for Constitution of States.” the United jurisdiction. may of therefore want It be appellee, and assumed that both the court trial sought finding plaintiff by The a attempt who does not here to rolls that his removal any sustain the ground on dismissal of the suit illegal setting and void an and order by other than that relied action, prayed aside this storing an re- order court, agree appellant trial with that list, his name to the voters’ complaint alleges on its face a claim prayed injunction prevent an future to which, true, if states a cause of action. challenges by or from defendant’s office assumption clearly justi- an Such seems judg- prayed the basis of race and fied, charges plaintiff for here the that damages ment for and for such and proceed- participated defendant warranted; further relief as he also ing challenging 3,000 him and other Ne- prayed similar relief for the class which groes being registered; illegally that plaintiff purported represent. to comply she failed to with the law as to interroga- served written challenges such and that thus il- she containing tories on fifty- the defendant legally appellant struck the of name eight questions, many of which were 2500 other from the voters’ list germane allegations relevant and to the solely on account of their race. complaint. Whatever area of doubt remains filed defendant motion to dis- as to the identification of other civil jurisdiction miss for of want and for rights, there can be no that doubt to failure state a claim on which relief right any to vote election granted. objec- could be She also filed guaranteed every qualified citizen interrogatories gen- tions on the regard without race or color. ground eral were so numerous race, color, previous “Effect or complex to burden and harass the servitude. defendant; they required defendant investigations to make research compile “Section citi- records; public data from zens United States vote abridged opinions by some called for task be denied or shall not by any place so hard that to answer them or would United States State on expense race, color, previous undue burden and or the de- account of fendant. of servitude.” Amend- condition XV, ment Constitution the Unit- The defendant then filed an affidavit States, ed Section by by which was countered two affidavits plaintiff. Congress requiring implemented Without an an- the Fif- any swer interrogatories, Amendment, as it is authorized teenth ruling objections them, paragraph, by without adop- on the its do second May 31, 1870, the trial court treated the motion dis- Act c. § together formerly miss with affidavit 16 Stat. codified at de- summary judg- fendant as a motion for now 42 U.S.C.A. U.S.C.A. 1971. § § ment, proper provides: authorized in case This statute Congress providing “Race, color, equal previous or condition persons of citizens or of within
not to all affect to vote. jurisdiction United “All States citizens United States.” qualified who law are otherwise cials with this pressly tions § vides jurisdiction munities secured thority, and tions, torial tude; any Territory, color, usage, in county, city, any statute, ordinance, district, standing.” rights. equity, custom, Territory, subjects, subjected, any injured States or other United States District for redress.” Congress original jurisdiction munity under ute, usage, tion authorized menced prevent “Civil action for “Every person who, “Civil “The district courts shall have “(3) To [******] vote the United by any laws, allowed to vote ordinance, provides: given jurisdiction or subdivision, without or color 28 U.S.C.A. essential any rights, privileges, by any person: or other secured in an action municipality, previous the interference to the State, rights. regulation has also any right, privilege shall any constitution, law, redress usage, thereof to the parish, township, States election citizen of the be regulation, distinction Territory, part: by by person within contrary proper proceeding condition to vote. liable to the or under shall provided § at all such law to or causes to State deprivation of at or other under color any by any Courts Constitution any Constitution law, deprivation, over such ac- be regulation, by custom or law, State notwith- which of servi- State depriva- district, be civil ac- custom, entitled its sanctions United suit U.S.C.A. people or im- or im- school Act of terri- party race, are ex- com- elec- stat- au- be or pro- offi- King, which relief violation of L.Ed. 1025. It is true that the pated was a *5 Constitution, denied 327 U.S. was not acts acting damages ant under the lenge, struck from the voters’ did not two failure to specting assert supra, their However, office any with the the piration tion, stood come back for 132, and that the cause lief. the voters’ for the defendant. fendant solely judgment stated alleged by plaintiff to have been done court’s It seems We course, refusal to hear more others under Section him on both of which were in an around member then caused his rather a cause of in her official expressly newspaper We conclude that her were done action could have and for of three allowed as Cir., vote, account comply publication requirements alleging proper publication and illegal rolls, come to the to remain clear, specified provisions processing plaintiff being could be 12 and provisions been made asserted complaint 154 F.2d alleged and, by injunction. Chapman were acts that name to days office and action even purpose entering protests therefore, upon registrar done; provided by plaintiff’s “refused to Negro on the after last fáilure to capacity, rolls, solely granted though propriety her own necessary delay a claim the affidavit of Section warranting by does these the such continued to until struck from all race 133, supra. the defend- rolls;” and, improperly closed her defendant, protecting Ordinarily complaint plaintiff’s race. certiorari challenge hundreds explicitly summary of which both only publica- acts partici- process law Section a chal- comply and in illegal notice of the upon are re- ex- de- re he be original helpful Dr. Reddix for both the trial court swore “The it is challenge immediately reviewing is- said the fact court to have was not petition respon- mailed to sues drawn herein as affiant pleadings parties. subject no processed Here law on the sive and was not defendant, subject been filed accord answer has with newspaper.” law on the daily for but relied a motion to dismiss she allege which failure a claim relief Assuming plead- that the state of the granted; were asserted could be no facts ings and court affidavits authorized the pleading, subse- in this the defendant for to consider summary motion the case as if on quently filed she as- an affidavit in which yet plain judgment, here it is bearing on serted numerous facts his conclu- trial erred in allegations complaint. This was sions when he did so. replied affidavit gainsaid hardly We think can be categorically several rele- denied before marily be voter can sum- portions of vant defendant’s affidavit. denied vote because stage proceeding It was alleged disqualification of some the statu- court, requiring the trial without tory procedures disqualifying him plaintiff’s to answer defendant inter- strictly must adhered to.4 Here rogatories passing without affidavit of the herself affirma- defendant objections although them, formally re- tively shows that she did not follow the quested by plaintiff so, held to do mandate The court’s the statute. genuine “there are no issues of material finding of fact that the defendant caused presented by fact record.” published *6 notice to be stage proceed At the then “in accordance with L.S.A.-R.S. 18:132 ings there were these issues of faet: support. 133” and is therefore without (1) Lucky Mrs. asserted that “two Assuming the her assertion truth bona fide voters Ouachita immediately that she mailed the notice Parish, Louisiana executed an affidavit required by or within hours as challenging registration before her obviously statute, pub then she did not procedure Dr. J. I. Reddix.” This is the plaintiff’s lish the name “as soon as at provided 133, supra. for Section in Dr. accumulated, six names have least or Reddix, in his stated: affidavit “Said days within not more event than five challenge compliance was not made in mailing notification,” because after subject with law on the and that affi- publication place she swore that the took davit was not executed the de- May before at least five alleged as in her even required days fendant affidavit after the time six though appears the same to have been All normal rules for the statute. con signed by Wesley John J. Feeback and aside, of statutes does not struction Burdine”; appeal justice to an acute sense of to argument (2) Lucky Lucky Mrs. swore hear gally prevented that Mrs. le that the affida- was hearing April 26; plaintiff’s made on from vit was that “the original challenge day5 publi protest of said was fourth immediate- after included) ly (Sunday mailed to Dr. Reddix” “that notice cation she duly published days, powerless of said was to act after three was May 10, power Monroe News had the Star but that she to make plaintiff’s May 11, publication 1956.” notice ten valid supra. Cf. footnote strict: “We are admonished 4. article to adhere 13 of the Civil Code to the let law, attempt appellee support pur and not to A cited her ter of the case spirit, position legally prevented free she was sue its when the law is from that plaintiff’s ambiguity.” hearing protest Kelly, from after Weber & F. Co. v. Harvey expiration days (without Co., making of three D. 178 La. & So. Sunday) warns allowance us that construction in rule of Louisiana thus days- regis- or eleven notice after the mailed that “numerous whose individuals publica- challenged when appeared the statute such tration had been days” tion “not more five thereafter. their business was attended to.” If on her lack of author- defendant relies course, Of unresolved issues these ity plaintiff protesting be- to serve fact would case un- not material to the ing dropped from the voters’ list because alleged depriva- less related to the certainly day late, he was one then he can plaintiff’s rights, tion of and unless such legal question authority her to make deprivation was of which the Federal one publication valid five because she was cognizance. courts could take Undoubt- days Lucky’s late.6 We think Mrs. edly they deprivation of related to a comply failure the statute rights. plaintiff's If Reddix’s publishing the time plaintiff the notice as was true fol- statute was not subsequent her action made publication lowed or as either as to the striking from a nul- his name the rolls making challengers’ to the vits, affida- lity.7 illegally then he was struck categorically Moreover, plaintiff' list, dis- voters’ and denied mayor’s allega- puted chal- defendant’s assertion vote election. lenge prejudicial in accordance with law. made these actions were plaintiff In order drastic to be the basis of the some 2500 oth- done contemplation, color, volunteer action in er for reasons of race and challengers sign petition an and swear to on leged injury face the al- must registrar dep- cognizable one affidavit before uty. person Federal No other is authorized to courts. Defendant did particular the oath for administer that she not acted on assert Lucky purpose. color, simply Mrs. swore the two of race basis but she challengers illegal says allegedly she did do “executed affidavit respect previ- affi- Dr. Reddix “the In we have her.” swore that acts all. one ously executed before defend- shown her affidavit demon- davit ant, illegally. A more her affidavit.” strated that she did act As *7 imag- other, open dispute would be hard to the issue is still clear-cut filing legally dispute of stands she acted ine. is a a fact that whether It that, appear If it case. If Dr. Reddix affidavits. should heart of the two by Reddix, right, proceedings accepted were void then the entire as sworn to affidavits, she charge nullity, not in accord with that she did then his grounds did this on the of race color The not resolve statute. give finding point on this of course also rise to a Fed- fact would issue. challengers right. merely two eral stated “that ” * * defendant filed an affidavit much im- seemed trial court finding as to whether the affi- is made No although by pressed fact that defendant or was made davit provision before make for Louisiana statutes deputy. her appellant re-registration, has here re-registration, Lucky attempt himself for to answer never offered Mrs. did not allegations although part plaintiff’s has so. fact his wife done In that that registrar process conduct court considered such more trial refused to the Negroes * say May 12, “bad faith of Dr. Reddix as other after open vindictiveness.” stubborn 14th and sheer her office that supra. been have been obviated had the notices footnote See published Moreover, when the earlier. published publishing plaintiff requirement failed to see his name for the no- days original mailing, five from the within as soon as six names had accumu- tice ignore requirement. goes had a under the law to he idle It lated was no matter, publication saying log within since much of the without Jam days mandatory requirement ap- Negro five was a hundreds voters caused voting right protect pearing their would of the statute. thereupon plain- The court record allowed the clear from abbreviated It is days during April tiff within which he should at- late the occurrences 3,- tempt re-register, saying: early May, in which some «* * * Negro perhaps white some voters plaintiff justifiably if challenged summarily with- voters were can and does file an amended and days circum- of an election supplemental complaint in this ac concededly im- made it stances which alleging delay, tion within that heard, possible result- all to be them attempted oath he has to re- Negro striking ing voters some register as a voter in Ouachita Par shockingly rolls, unfair from the awas ish, Louisiana,-and has been denied itself act The trial court someone. to do so or defendant impressed that L.S.A.- stated “we are solely deputy, of his account may been mis- R.S. 18:132 and 133 race, then will order a we trial on against plaintiff, man- unfair used that facts, issue to determine the true ner, Burdine and not defendant and thereafter will rule Feeback, possibly or other them presented. the record as thus If against challengers supple does file such a Ouachita further Parish.” The court mental and amended with as follows: stated delay, will in that we be entitled to 1) he has succeeded assume reregistering, particu- “This is based statement 2) that he timing larly upon the chal- against solely on been discriminated lenges, just prior election, to an race, 3) he has his account when books were closed for new attempted reregister, and registrations. We also are im- thereby has waived claims here pressed that, although with the fact in. Defendant’s motion for sum had no alternative under defendant granted mary judgment then will be accept State law but to the chal- There is and the suit dismissed. lenges proceed exactly as she ample procedure precedent for this did, large such number of chal- being in so-calledcivil utilized lenges many were made that cases, comity, in order as a matter registrations persons whose were avoid a needless clash between challenged unable to be served authority. and Federal See State properly by defendant’s staff Cir., 1950, Cooper Hutchinson, 3 legal delays expired. Rutter, 184 F.2d D.C.W.D.Ky.1956, Brown v. prov- lie “It does not within our F.Supp. *8 suggest it, but, even to ince in order and authorities therein cited.” [148. type conduct, insure to this that F.Supp. 113.] possibly and the unfair results issuing Upon plain- the of this order it, happen which attended will not notified the tiff that court he would not again, it seems to us the Louisi- that amend, but desired to stand on the rec- Legislature might ana registration amend the again was, requested ord as it that provide so Statute as to objection rule on the the court to his in- challenges may no that be made later terrogatories. The court then entered thirty days prior election; an to judgment summary dismissing a final challengers civilly and to make liable case, ignoring once more plaintiff’s the damages registra- to voters whose request interrogatories. as to the challenged by tions are them without adequate say Especially light reasons. This is not to injus Statute, presently alleged disproved as writ- tice and not affida ten, injustice unfair, vit, is for it is not. which This the court itself rec say, however, ognized is saying to that can be it the extent of to that it unfairly by challengers, ap- appeared used that the statute had been used pears challengers unfairly to have been done here.” the and that applies ehállenged persons un- case here. many two civil actions were The the grew properly, it out of the same series events. we think able necessary served to be plaintiff had say the to that present ease, In the District Court the bring without this action the starting analyzing opinion and wrote an quoting the facts re-register. If, again over portions pertinent author- the illegally dis- alleged, he he qualified has been is, reasoning opinion ities.1 The of that any per- action of unfair the my mind, to firmed; be af- accurate and should sign of his whomsoever, it is no son then opinion I from dissent spirit of vindictiveness or of bad faith a majority case, upon this based wrong in for him to seek to redress opinion Court, my dis- the District for action is an It no defense court. case, Sharp sent and these addi- in an deprivation of to vote tional comments. say elec- are election that there I. coming. plaintiff has been If tions (a) only pleadings illegally list before the from removed voters’ complaint having illegal remedy action District Court were lies re-registering. motion rescinded, dismiss which was based grounds: upon three proper case not a think We “(1) To dismiss this action on Obviously the for class action. ground ju- that court lacks upon depends actions voter each subject risdiction over the matter. respect As case. to his own
taken with (2) To dismiss this action on they may some, well be grounds ju- lacks legal require with in accordance notified ments; person. risdiction over the may affidavits some according law; as to (3) taken been To dismiss the be- action have adequately may been complaint have some cause fails to state large spite against crowds served claim the defendant get alleges prevented granted.” him plaintiff can be which relief ting The fact attention. defendant’s ground support appellee No. filed In allege prove the voter must each appellant one affidavit countered might up add circumstances majority opin- two affidavits. with inappropriate, if illegal purge, makes it ground only (3). ion deals single plaintiff to impossible, for not represent (1) (2) (b) supra Grounds chal- action. in a class them lenged jurisdiction of the District complaint hold, therefore, We question present Court, and that could relief for which a claim and remained the first or- the threshold case granted and that throughout of business consideration der disposed for of on motion improperly was summary' being diversity There no case. judgment. ground citizenship juris- or other re- i judgment claimed, reversed neither District diction proceedings in- any jurisdiction further nor we manded Court opinion. with this unless the case shows consistent *9 right maintain action face a its quoted by Judge (dissent 1343 CAMERON, 28 U.S.C.A. § under majority opinion. Circuit ing). 16,687, claim under that a To a statute companion No. state case to is a This allege litigant only 910, Cir., F.2d is not Lucky, 252 5 Sharp v. by day have him ille- same officials treated that state brought the same equal protection denying by him gally, appeal
attorney and decided laws, that such its treatment Much of the of time. same Court his race col- him or dissenting opinion accorded I filed of seq. F.Supp. D.C.1957, et Lucky, 108 148 Reddix v.
939 Happersett, 162, 170-178, v. or. The Constitution the statutes 21 Wall. majority 627; upon by Williams, 22 Pope make all L.Ed. 193 relied v. 621, 632, 573, 575, U.S. 24 48 clear. S.Ct. 817; Suttles, L.Ed. 302 Breedlove v. example, Amend- For the Fifteenth 277, 283, 205, 208, U.S. 58 82 S.Ct. right provides shall ment vote 252, right privilege L.Ed. is a or abridged of by a “on account not be state citizenship, state izenship national cit- race, color, of previous of condition of protected which alone is 1971, 42 § servitude.” U.S.C.A. privileges immunities majority says implemented con- * * * clause. words, provision, contains like stitutional “* * * Thg (jenjai race, color, distinction “without is of * * previous petitioner condition of servitude can- be a 88 L.Ed. ard for Republican Party brought are here plying Court said there controls this case: State as one Hughes, enunciated the *10 right state L.Ed. Kentucky, pertaining 21 Ct. privileges and immunities clause in 530, 539, which, lished derived Co. dent cludes those ter-House States, zens The basic certify County “The case. L.Ed. 406, 409, 410, L.Ed. Primary election of America v. U.S. office, these to suit 1124; Prudential Madden decision in this case could be under the laws and Constitu citizen and but does not include involved. the United solely protection the chosen candidates of him citizenship 525, 538, 394; Canvassing become Snowden Cases, 309 U.S. Supreme to state like the principles of S.Ct. Canvassing 321 U.S. No more United States rights v. Commonwealth of state law. Maxwell v. in a state election quote 16 Wall. 516, 520, What a candidate for extended right Cheek, States, candidate, Court citizenship officers, same Board. In S.Ct. 1, accurate is 90-93, state estab relationship Board refused been certified re 64 to 36, 74, Insurance 590. The privileges Snowden decision language are inci 66 L.Ed. statutes vote Bugbee, Slaugh S.Ct. to citi United Minor Supreme But 60 S. U.S. stand for 2 397, ap he persons the ‘willful’ supplied actual discrimination because mere its poseful discrimination. presumed, race. But a it an element included enough; statute a discrimination,’ nation between lic office are entitled to be less there is shown to be number nominee, the leged intentional or secured to him Board’s any fusing tration [*] * * * didate purposeful showing “The lack of “* * * [*] unequal application complaint here, Board’s facts deprivation showing denial * [*] discriminatory purpose to result fair or classes of failure and in a there must be a upon receiving the Board was tending There is no certify petitioner the votes. The * * * failure to discrimination between ‘malicious’ particular jury ‘clear and intentional its purposeful opprobrious epithets equal protection persons intentional or officers of to show that unlawful * * * be elected to solely from face, state negroes treated tending obey persons there must be allegations to those who allegation certify resulting making any statute and showing a sufficient applied or classes. present state law. * * * discrimi- were not adminis- alike, to show a state But a is one is is not is not as a peti- pub- pur- un- re- al- to quotation brings together separated pages U.S., page 2. The of 6-12 at of appearing sentences from the decision on * *” * candidate, or law is to tioner a be favored. as successful [Emphasis
by characterizing supplied.] that failure ficient any parture ministration of unequal, [*] laws of Illinois which is not tection lation to discover laws “A try questions [*] issue of construction * [*] of federal clause to call the administration unjust, Such a equal protection of the purposeful our allegations are of the and right officers from state decisions of would laws a oppressive federal law order discrimina- of equal pro- find vio- every to raise Illinois. alleged. insuf- ad- de- most of conducted plaint thought put which that the the derscored statement basis quoting Against margin his best complaint ought of the brief sets out in copied assume that therein from the that action taken was race —“that the appellant’s wholly of that the foot it would be in the the law only portions forward.3 clear and complaint, allegation brief which solely brief consists the and of the be laid. Since highly challenge averments full, solely appellant has We on the unequivocal of the com- we complaint illogical charges copy on the basis was un- the in of of Negroes though process any to hundreds more even complaint eight Paragraph reads and around the office con- challenge stood was “That as follows: purpose tinued to for of come back solely wholly and on conducted right protecting to remain on the their any white that basis race and if rolls; reasons in that the several challenged they persons were so were paragraph plaintiff and stated twen- no the number would that few ty-five Negroes (2500) hundred other consequence; defendant that disqualified were to remain on the roll of challenges her office mailed more registered voters defendant.” of Ne- and hundreds could accommodate Paragraph complaint nine of the reads got groes to answer into her office never regis- “That follows: the office of the only investiga- challenge; May 12, closed on 1956 and trar that the Negroes status was tion made publication challenged ap- last names registration card their brief and therefore the by look peared May 11, issue investigation Star, clipping 1950, the Monroe News of said Revised Statutes Louisiana being hereto names part attached and made a 18, never com- section was Title petition of this and marked ‘exhibit with; proper publication plied purpose identification; necessary A’ for newspaper notice the. plaintiff brings delay provided this action in own be- not allowed as (3,- 1950, half and that of three thousand Ti- Revised Statutes of Louisiana Negroes 000) challenged so that hundreds let- tle section particularly persons on behalf of challenging Negroes all ters ” named exhibit ‘A’ hereto.’ attached rolls never deliv- remain were complaint Paragraph reads ten of returned the office of and were ered particular they plaintiff registrar though “That even as follows: May addressed; correctly defendant on office of that hundreds went Negroes and offered to 10:30 A.M. were denied certification 1956 at deputy registrar refused her the basis answer and/or produce they (3) the books have to on the basis would three defendant were of to closed; of the number voters from their that because bona fide daily trying persons precinct office all in violation of Louisiana Re- around regis- prove correctness of their Statutes Title section vised 132; get plaintiff could not in the office that hundreds were de- tration prove date the above mentioned even certification or nied though many times.” he to remain on rolls tried their expired provided by Paragraph eleven of time their quoted though “That was no above even as follows: there section 132 reads days had stood line several was ille- reason believe get gally registered dam- near office because of and he been could persons trying aged by number answer the aforesaid acts of defendant the their challenge; registrar Twenty-Five closed extent Thousand ($25,000.00) refused Dollars.” her office No/100
941 * *” * complaint language does is Here the of race. The of McGuire v. charge any part Todd, appellee Cir., 1952, 60, 63, 5 198 F.2d not cer- challenging any appellant of tiorari of denied 344 the U.S. Negroes mentioned; not it is 97 649: L.Ed. “* * * charged conspired even that she with as other have courts challengers with or acted in concert done, disregard, we mere conclu- specification of er- them.4 second sions, general, the loose and the fac- appellant’s Dis- rors in is brief tually unsupported, characteriza- regis- holding erred “in trict Court complained tions of the of of acts accept trar was the affidavit to defendants, malicious, conspira- legally of Burdine and Feeback torial, purpose and done accept could not refused it.” We to depriving plaintiffs their consti- argu- repeat complaint that the and the things rights; tutional de- appellant intimate that ment of do not alleged done, are fendants to have anything appellee had to do with the distinguished from the conclu- Negroes whites. these pleaders respect sions of the with them, do deprivation not constitute a (c) majority seems content rights plaintiffs, of the civil upon jurisdiction was act thesis that give do not of ac- rise the cause conferred and a federal action stated [Emphasis tion claimed appellant appellee’s] based on “her [i.e. added.] illegal comply own failure to with the (e) general respecting processing quoted law statement challenge.” Following quoted majority opinion such has “she abridged words, majority opinion proceeds privileges and immunities ap- point particulars as a citizen of out several in which United States and pellee comply equal protection him law: denied failed with state law * * * by failing proper publication presently denying make him closing newspaper, by represent and notice in the and the class he the above [sic] by refusing 12th, they enumerated office all because are * * *” Negroes process Negro any more than she did members of the race though palpably is so even hundreds stood around the a conclusion and “loose * * * striking general office, factually and supported the names un- Negroes appel- from the voters’ roll. In no in- characterization” that por- stance facts set sustain- lant did not even were forth include it in the ing charge complaint copied these failures to com- in his brief. Every ply practiced with law were one of the cases enumerated in Negro, supra 4 or that the same contained iden- Footnote almost produce generalizations, failures did identical tical but not results this Court respect accept with white voters as well. would them because factually unsupported. (d) consistently This Court has held that, certainly Every- where the effort is invoke made to Such case here. jurisdiction thing appellee a federal did which is rights statutes, the civil been in will assidu- have violation state law af- ously strip Negroes of all con- whites and mere fected complaint alike. The allegations only factually anything clusions and of supported. fails to show against appellee did 4. A charge leah, Cir., 1951, 421; that has been in bold 5 188 F.2d Hewitt rejected language City Jacksonville, Cir., 1951, us in 5 the cases v. 188 423; Whittington Johnston, enumerated this note F.2d v. because the ef- 810; pri- Cir., 1953, Yglesias fort connect state F.2d officials v. Racing Association, vate forth citizens set conclu- Park Gulfstream pleader Cir., sions without 201 F.2d recital Dinwiddie v. Brown, Cir., ivhich the 230 F.2d conclusions facts City West, Cir., were based: Charlton v. Hia- Roark F.2d 956.
942
equally
whites,
1152,
did
97
but
affect
L.Ed.
idea was re-
same
peated
complaint affirmatively implies that some
:
people
by appel-
prejudiced
white
were
appears
right
“It
suf-
alleged illegal
lee’s
actions.
frage
necessary
attribute
citizenship;
national
ex-
(f)
important
keep mind
It is
emption from
discrimination
of elections is a state
conduct
right
exercise of that
on account
regulated by
and con
matter
state laws
race,
right
etc.,
is. The
to vote
time
ducted
state officials. The first
States;
the States comes from the
Supreme
had before
stat
Court
it
right
exemption
pro-
but the
from
utory implementation
Fourteenth
hibited
from
discrimination comes
voting rights,
applied
Amendment5 as
7
the United States.”
language:
it used this
(g)
Judged against
background
“The
add
amendment did not
up
consistently
of the standards set
privileges
of a
and immunities
Court,
my opinion
followed
it is
simply
citizen.
furnished an ad-
It
properly
was
dis-
guaranty
protection
ditional
for the
grounds (1)
(2) swpra
missed under
already
of such
had. No new
as he
allege
showing
for failure to
fed-
facts
necessarily
it.
voters were
jurisdiction.
eral
**
*
therefore,
clear,
we
It is
II.
think,
has not
that the Constitution
my opinion
In
was
suffrage
Court
District
added the
to the
holding
also
correct
the relevant
privileges
and immunities of citizen-
undisputed,
and material facts
ship
it
existed
the time
testing
ground
the third
of the motion
adopted.”
was
dismiss,
failure
state a claim.
following
court,
term of
when
At the
subjected
are
affidavits
the same
be
upon
called
to deal with the Fifteenth
large
pleadings.
part
tests as the
A
again
Court, speaking
Amendment, the
majority opinion
is devoted to a dis-
through
Waite,6
like
used
Chief Justice
ques-
cussion of
conceives to
by
what
language:
tions
fact raised
the affidavits. The
does
Fifteenth Amendment
“The
majority quotes
Lucky’s
Mrs.
affidavits
suffrage
confer the
not
anyone.
that “two bona fide
voters
prevents
States, or
It
Parish,
Ouachita
Louisiana executed an
however,
States,
United
challenging
reg-
affidavit before her
giving reference,
particular,
in this
Reddix;”
istration of Dr. J. I.
and Dr.
citizen of
States
to one
the United
response:
Reddix’
“Said
race,
over
col-
another
account
compliance
not made
with the law on
or,
previous
of servi-
condition
subject
and that
ex-
affidavit
tude.”
ecuted
defendant
Terry Adams, 1953,
though
345 U.
ap-
v.
in her
even
And
the same
affidavit
461,
2,
809, 812, pears
signed by
467,
S.
footnote
73 S.Ct.
to have been
John J.
1874,
162,
Happersett,
Logan
1891,
States,
21
5. Minor v.
Wall.
v. United
144 U.S.
627,
171, 88
162, 171,
286,
617,
263,
429;
22
con
L.Ed.
U.S.
S.Ct.
36 L.Ed.
struing
Blacker, 1892,
1,
now 42
the statute which is
U.S.
McPherson v.
146 U.S.
38,
1983, being
869;
3,
relied
the statute most
L.Ed.
§C.A.
13 S.Ct.
James
by appellant
Bowman, 1902,
127, 138,
here.
190 U.S.
678,
979,
47 L.Ed.
S.Ct.
cf. Snow
Reese, 1875,
Hughes, 1943,
7,1,
6. United States v.
92 U.S.
den v.
321 U.S.
64 S.
217,
214,
397,
23 L.Ed. Ct.
those interposition of a court of for the injury irreparable equity prevent imminent; clear ” [Emphasis 14 added.] steadfastly accord-
And this Court discretion to re-
ed Courts District fuse of case Civil hold take Rights compulsion to- unless Acts strong
wards indeed. such action was Board of of La-
See Brown v. Trustees
Grange District, Independent 5 School 20,
Cir., we held 187 F.2d where that a equity had the discretion to dis-
court court was
miss a suit because the system.
equipped operate a school And Bullock, R. Co. v. also Illinois Central
see While, therefore, Cir., F.2d 851.
5 181 below
I feel the court was correct reasoning opinion its and the reached, also
conclusion state a case failed to of which jurisdiction, court had
the federal argument plain for
seems to me too discretion had the dismiss
appellant’s action, and that we should
not hold its discretion abused. Rehearing CAMERON, Cir- denied: dissenting. Judge,
cuit Watson, 1946, 582, 595-599, To Railroad same effect are U.S. 66 Com 761, 873, Co., 1941, Texas v. Pullman mission of L.Ed. and Amal S.Ct. 643, 496, 500, gamated Clothing S.Ct. of America U.S. L. Workers v. City Chicago 971; Bros., 1955, 511, Ed. Richman 348 U.S. Fieldcrest 514- Inc., Dairies, 316 U.S. 99 L.Ed. 62 S. L.Ed. A. F. Ct. of L. v.