SOUTH et al. v. PETERS et al.
Civ. A. No. 3791
Unitеd States District Court N. D. Georgia, Atlanta Division
March 15, 1950
89 F. Supp. 672
The charge of deprivation of property without due process of law lacks merit for two reasons. In the first place, private parties, as distinguished from agencies of the government, either state or federal, are not charged with the protection of constitutional rights. In consequence, their conduct is not deemed to be unconstitutional. Shelley v. Kraemer, 1948, 334 U.S. 1, 8, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441. Second, the
Finally, although it is not essential to the determination of the pending motions, we agree with defendants that the demand for a wholesale adjudication of the rights of all carrier employees to representation by persons of their choice in handling grievances with their respective employers is without merit. No decree of this Court could operate as a binding adjudication of thе rights of any persons other than the parties to this cause. This is not to say that binding decrees cannot be made with respect to persons other than the named parties to an action, if they are members of a class and if they are adequately represented. But no such representation is alleged in this complaint, nor does it contain any allegations establishing that this controversy exists between carrier employees other than Wilson, and carriers other than Santa Fe. While parties to a controversy may of course be brought before the court by the class action device, if the requirements for a class action are met, they must nevertheless be parties to the controversy sought to be adjudicated, and not merely persons who, because of actual or potential involvement in similar controversies, are interested in the judicial precedent which may be established.
There remains pending and undisposed the action of plaintiff Wilson against defendant Santa Fe for wrongful dismissal. This is a simple suit for breach of contract and the jurisdiction of this Court is predicated solely on diversity of citizenship. The complaint alleges the jurisdictional amount, but whether plaintiff Wilson ever had a bona fide claim in that sum will depend upon the evidence. I merely caution the parties that if from the proofs it shall appear that plaintiff‘s claim was only colorable, this Court‘s diversity jurisdiction may be defeated. St. Paul Mercury Indemnity Co. v. Cab Co., 1938, 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845.
This Opinion is filed in lieu of findings of fact and conclusions of law. The parties will submit within five days a draft order consistent herewith.
Eugene Cook, Atty. Gen., State of Georgia, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., defendants.
Before SIBLEY, Circuit Judge, and DAVIS and ANDREWS, District Judges.
PER CURIAM.
This case, in which a principal relief sought is a permanent injunction to restrain the operation of a Statute of Georgia by restraining the action of the Secretary of State of Georgia, on the ground of the unconstitutionality of the Statute, came on, after due notice, for a final trial before a court of three judges, designated by the Chief Judge of this Circuit, on February 24, 1950. Oral and documentary evidence was presented, and it was agreed that the Court should consider the political history of the State and such other matters as are proper to be noticed judicially. Argument was had and time was taken by the Court to consider and for filing of briefs. The following findings of fact and conclusions of law are now announced, and decree entered.
The Georgia Statute attacked is the Act of August 14, 1917, now codified in
The Provisions of the exhibited Act here specially pertinent are: “Whenever any political party shall hold primary elections for nomination of candidates for United States Senator, Governor, Statehouse officers, Justices of the Supreme Court and Judges of the Court of Appeals, such party or its authorities shall cause all candidates for nominations for said offices to be voted for on one and the same day throughout the State * * *. Candidates for nominations to the above-named offices who receive, respectively, the highest number of popular votes in any given county shall be considered to have carried such county, shall be entitled to the full vote of such county on the county unit basis, that is to say, two votes for each representative to which such county is entitled in the lower house of the General Assembly. If in any county any two or more candidates shall tie for the highest number of popular votes received, the county unit vote of such county shall be equally divided between the candidates so tying. All such county unit votes shall within 10 days after such primary be accurately consolidated by the chairman and secretary of the State committee of the political party holding such primary, and published in a newspaper published at the Capital, within three days after the completion of the consolidation, certified under the hands and seals of said chairman and secretary; and the candidates for said offices, respectively, who shall receive a majority of all the county unit votes, throughout the entire state, upon thе basis above set forth, shall be declared by the State convention of the party holding such primary, or the permanent chairman, or other party authority, without the necessity of a formal ballot, to be the nominees of such party for the above-named offices, respectively“. The Statute makes it the duty of the party authorities to see that the nominees shall be placed upon the ballots at the general election, which under other statutes is done by a certificate to the Secretary of State whose duty it is to prepare and distribute the form of the official ballots. The Neill Act further provides that if there should be a tie in consolidating the county unit votes, the candidate who received a majority of the popular vote shall be declared the nominee. Another provision is that in case there are more than two candidates for an office and no one receives a majority of the county unit votes, there shall be a prompt second primary between the two candidates who received the highest number of unit votes, with elaborate provisions as to its result.
The petition further alleges that since 1872 the nominees of the Democratic Party for United States Senator and Governor have won in the final election so that the
Answers are filed by Peters and Mrs. Blitch, as the Chairman and Acting Secretary of the Georgia State Democratic Party, and by the Secretary of State; which set up as grounds to dismiss that there is no substantial federal question or federal jurisdiction because the rights asserted arise only under the laws of Georgia; that the matter is political and not within equitable cognizance; that relief asked is not of private right, but must be sought in the legislative and political departments of government; that there is no present actual controversy for declaratory judgment; that no injury to complainants is apparent because their candidates may win; that Turman v. Duckworth, D.C., 68 F.Supp. 744; Id., 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596, is conclusive of the present case; that the suit against the Secretary of State is in effect one against the State without its consent; and that the State is an indispensable party. The answers admit many fact allegations of the petition but deny some. They assert that the State Democratic Party is not an entity that can be sued or enjoined; and that the Chairman and Secretary of the Executive Committee do not represent its other members; and that no primary has yet been called by the Committee. The figures as to population of Fulton and other counties are not admitted. They deny that the “County Unit System” of voting is discriminatory or intended to be, and say it began with the organization of the State, and that it persists in many ways under successive State Constitutions. As to party nominations, it is alleged that they have from the earliest times been made in State Conventions in which the voting was by county units, and since primary elections came into use the same idea has merely been preserved; and in all instances but one under the Neill Act the county unit result has agreed with the general popular vote, both being certified to the Secretary of State and being thus of public record; and in most instances the candidate who carried Fulton County also got the majority of the county unit votes, so that it has not in fact operated to discriminate against the voters of Fulton County. The prayers are for dismissal of the petition and the refusal of relief.
Findings of Fact.
The plaintiffs are citizens and registered voters of Fulton County, Georgia, associated with the State Democratic Party and entitled to vote in its primaries. There is nothing personal or peculiar to them which distinguishes them from other Democratic voters in Fulton County. The personal defendants have the offices alleged and represent respectively the functions alleged. The Secretary of State does not represent the State otherwise, nor appеar for it. The Chairman and Acting Secretary of the Executive Committee represent the Democratic Party in the functions of their offices but do not appear to have been authorized by the other members of the party or the Executive Committee to represent them as litigants. The Party is a voluntary association whose membership is constantly changing and uncertain.
Fulton County is by far the most populous of the 159 Counties of the State. By the federal census of 1940 the population of Fulton County was 392,886 and that of the State was 3,123,723. The population of many of the counties was under 10,000. Exact figures at present have not been established by the evidence but it tends to show and we judicially know that since
As to the origin of county unit organization in Georgia, and the political history of the State, the statements in the Twelfth Defense of the answers are substantially correct. Under the first State Constitution of 1777, Watkins Digest, Page 7, eight counties were established, in each of which annually were to be elected “representatives of the people” by the qualified voters, Liberty County electing fourteen representatives, Glynn and Camden two each, the other Counties ten each, and “the port and town of Savannah * * * four * * * to represent their trade” and “the port and town of Sunbury * * * two * * * to represent their trade“. Population is not mentioned. These representatives were to meet and from their number select two from each county to constitute a Council, and to elect а Governor. The remaining representatives constituted the Legislative Assembly. The Council was to vote by counties, and not personally. The counties were thus the units of government. It was under this Constitution that Georgia ratified the federal Constitution and entered the Union. The State Constitution of May, 1789, adopted just after ratification of the federal Constitution, created a Senate composed of eleven members, one from each county elected therein for three years. The Representatives in the lower House were elected annually from each of the eleven named counties, Camden having two, Glynn two, Liberty four, Chatham five, Effingham two, Burke four, Wilkes five, Washington two, Greene two, Franklin two, Richmond four, a total of thirty-four. The Governor was elected by the Senate every three years, out of three persons nominated by the Representatives. Population was not mentioned. Watkins Digest, Page 25. In May, 1795, under а new set up there were twenty counties and the representation was reapportioned. The elections by the General Assembly were by joint ballot of both Houses. Watkins Digest, Page 30. In May, 1798, Watkins Digest, Page 31, the representation for the then twenty-four counties was temporarily
In Georgia, party nominations for officers to be elected in State-wide elections have been traditionally made in State Conventions of the party, the delegates to which are chosen in the several counties by mass meetings, or since 1872 by county primaries, each county having in the convention twice as many votes as it had representatives in the State House of Reprеsentatives. State-wide primaries began to be held in 1898, when the Democrats and Populists were in a doubtful struggle for power. The Populists did not succeed in the State-wide elections, though they did in many counties. The Republicans also frequently succeed now as to county offices, but have not carried a State-wide election since Reconstruction days, so that the Democratic nominees have uniformly won in them since 1872. Democratic nomination is not however the equivalent of election nor does it insure it, for much may happen before or in the final election; but the nomination is practically potent, and important to voters and candidates.
As to the operation of the Neill Act, it has had little effect. The holding of a primary is at the option of any political party, and is not requisite to nomination or to a place on the official ballot. When
The evidence does not disclose any legislative purpose to array county against city or to intentionally disfranchise urban voters. The history of the State, and of the political parties within it, shows that political power has from the beginning been exerted to a large extent through counties as voting units, along similar unit lines. We find as a fact that there was no bad or discriminatory intent in the Neill Act, beyond what necessarily follows from its provisions.
In prаctice in primary elections for Governor under the Neill Act the successful candidate according to county unit votes has also obtained the majority of the individual votes, save once in 1946. So as to United States Senator the same is true except once, and the successful candidate there had a plurality of individual votes. The candidate who carried Fulton County itself has more often than not won the primary under the Neill Act count.
Since this case was submitted party officials have informed the court that the Democratic Executive Committee at a meeting held on March 14, 1950 has called a primary to be held on June 28, 1950. At the last session of the Georgia Legislature a resolution was adopted by the requisite two-thirds votes of each House to submit to the voters of the State at the general election in November, 1950, an amendment of the Constitution which, if adopted would write into the Constitution the provisions of the Neill Primary Act touching party nominations and also would make the election of United States Senator, Governor, and other State-wide officers to depend similarly on county units.
Conclusions of Law.
The special defenses of the answers, summarized above, are each overruled and denied as being without merit or unnecessary to be decided except those involved in what we consider to be the crucial questions for our decision. They are: Does the federal Constitution forbid that a State may, in an election affecting the whole State, or a portion thereof, subdivide the territory affected into smaller units, to wit, counties, for the purposes of taking the vote and ascertaining the result, the subdivisions having materially different populations? Is the question of the propriety of such subdivisions a political question of which a court of equity may not take cognizance?
We put aside cases at law, whether for damages under a statute, or criminal prosecutions under a statute, involving the unlawful refusal to accept a voter‘s ballot, or to register him for voting, or properly to count his vote; in which the duty of a court to act is clear. Here each qualified person is to be permitted to vote and his vote is to be truly counted; and the whole trouble is that by subdividing the territory into voting units of unequal population, and presumably of unequal voting strength, one unit has an advantage over another unit in political effect. The petitioners complain of no wrong personal to themselves and not common to all voters in their unit. The wrong, if any, is to their unit. We of course accept the ruling of the Court of Appeals of this Circuit in Chapman v. King, 154 F.2d 460, that the attacked Statute is part of the election machinery of the State, and we shall discuss the questions as though the primary was a true election, but also noting the difference between the two. The cases on the question of the subdivision of the election territory, or nominating territory, are Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131; Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432; Turman v. Duckworth, D.C., 68 F.Supp. 744, from this court, disposed of in the Supreme Court 329 U.S. 675, 67 S.Ct. 21, 91 L.Ed. 596, and referred to in a per curiam in Colegrove v. Barrett, 330 U.S. 804, 67 S.Ct. 973, 91 L.Ed. 1262; and MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1.
Plaintiff‘s proposition that a vote in Fulton County has only one tenth the force that it would have but for the county unit rule of the Neill Primary Act, which is unjust and undemocratic, has strong appeal, but it is not a matter for this court to decide. Our question is primarily whether the federal Constitution is violated thereby. In general, that Constitution is not committed to elections by the people over the whole affected territory in which every vote will have equal weight, but rather the voting is by smaller units of unequal population and unequal voting power for each vote. The voting unit is never the whole United States but always the vote is by States, or smaller subdivisions as Congressional Districts under Congressional and State Statutes. The Constitution begins, “We, The People of the United States * * * do ordain and establish this Constitution for the United States of America“; but the people thereof never voted on it. Amendments thereto, under
True it is that
We therefore cannot say there is any general constitutional principle forbid-
As to equal protection of the law, shortly after the ratification of the
The federal Constitution does not take from the States their right to set up their own internal organization and prescribe the manner of State elections. We do not think the
As to the Senatorial election also, the remedy is political and can be sought either in the State Legislature or the Congress, for Congress may at any time regulate the manner of holding Senatorial elections. That primary elections only are involved makes no difference, because the Houses of Congress have several times investigated primaries in judging of the election of their members, and we think could even abolish primaries under the power
But after all this is a State regulation of primaries, not final elections. It relates, not to the Democratic Party alone, but all parties, strong or weak, usually victorious or otherwise. A primary never elects, but only nominates. The voters who turn out and vote for the nominee, determine his election. These nominees have traditionally been chosen by all parties in State Conventions organized and voting in county units. The Neill Act does not command primaries nor abolish conventions, but tells a party that if it chooses to have a primary it must ascertain its result by the old convention standard, and abide by it, the convention no longer having the final choice of nominees. This has been accepted as reasonablе until Fulton County by its own growth and absorption of other counties has become unique and wishes unique treatment. We are of the opinion as already stated that the judgment and conscience of the Legislature must afford it.
Wherefore it is now considered and adjudged that the relief prayed for be denied and that the petition be dismissed, at cost of plaintiffs.
ANDREWS, District Judge (dissenting).
I approach the matter of dissenting from my learned colleagues with great deference and do so only after a lengthy effort to reconcile my views with theirs. But I am unable to agree with the conclusions of law reached by the majority.
The Equal Protection Clause of the
I think the State Statute under attack, as applied to the statewide primary for any office, is repugnant thereto and should be so declared, and that injunction should be granted as sought.
Equity jurisdiction of the federal courts is discretionary, American Federation of Labor v. Watson, 327 U.S. 582, 593, 66 S.Ct. 761, 90 L.Ed. 873. Conceding that it should be sparingly exercised in state elections, Wilson v. North Carolina, 169 U.S. 586, 596, 18 S.Ct. 435, 42 L.Ed. 865, it is yet proper to employ it in clear cases.
Laying aside for the moment the critical questions of judicial power to afford injunctive relief in this case and the propriety of a decree it is difficult to imagine a more obvious denial of the equal protection of the laws than that imposed on plaintiffs by the county unit system or one with less foundation in experience, practicality or necessity. As qualified voters they are allowed to vote and their votes are counted. Then, by force of the statute, the votes are so consolidated that plaintiffs’ votes are evaluated at one-eleventh the weight given to ballots cast in other parts of the State. Thus the basis of the discrimination is place of residence, a discrimination not justified on any reasonable basis of classification, nor can it be said to furnish plaintiffs the equal protection of the laws.
It is noted that the rural population outnumbers the urban and that throughout the state the percentage to total population of votes cast is fairly constant, i. e., proportionately no more city folks vote than do country people. This disposes of the notion, tacitly approved in MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, that difficulty in getting to the polls should be recognized here as a makeweight in justifying a rank discrimination based on place of residence.
It is settled law that the constitutional protection of the voting right extends to a primary where such primary is an integrаl part of the state election machinery. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110. The Georgia Democratic Primary has been adopted by the State of Georgia as an integral part of the state election process and party action in such a primary is state action. Denial of the right to vote in a Georgia Democratic Primary is a violation of a federally-protected right. Chapman v. King, 5 Cir., 154 F.2d 460. Denial of the right to vote is a violation of the Equal Protection Clause. Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458; Smith v. Allwright, supra. The right to vote includes the right to have the ballot counted. United States v. Classic, supra; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274. The right to have the vote counted includes the right to have it counted without dilution and at full value. United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341. See dissent in Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, where the majority disposed of the case on jurisdictional grounds without consideration of the Equal Protection Clause.
Moreover the county unit system as applied in the election of United States Senators may be a direct violation of the
The constitutional рower of the Senate to, exclude the chosen one has no bearing on the individual‘s right to have his vote counted properly. The record shows that since 1872 no candidate for United States Senator other than a nominee of the Democratic Party has been elected to that office from this State. In logic and in fact the Democratic primary election for United States Senators is the only election of any significance and voting in that election is the only effective stage of a voter‘s choice. See United States v. Classic, supra, and Smith v. Allwright, supra. Furthermore, the right to vote for a member of the Congress of the United States, including Senators, is a right secured by the Constitution. Ex parte Yarbrough, supra; United States v. Aczel, D.C., 219 F. 917. Abridgment of the right by the state is a violation of the Privileges and Immunities Clause of the
This case does not present a political question in the sense that the subject matter is nonjusticiable, Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795; Colegrove v. Green, supra; MacDougall v. Green, supra. The plaintiffs are not political entities seeking solution of abstract questions of political power, as in State of Georgia v. Stanton, 6 Wall. 50, 18 L.Ed. 721; Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25; Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. They are not contesting a political office nor do they represent political entities seeking to enforce a right to good government common to all, as in Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499; Commonwealth of Massachusetts v. Mellon, supra. Plaintiffs sue as individuals to enforce rights political in origin but nonetheless personal and individual. Nixon v. Herndon, supra.
Colegrove v. Green, in which four of seven justices held a justiciable issue was presented, stands for the proposition that equity must withhold injunctive relief where the consequences of a decree might be worse than the evil to be remedied. Where the evil complained of can be remedied without disruption of a pending election and without denial of rights to other citizens, as in the instant case, the rule of Colegrove v. Green does not apply. Colegrove v. Barrett, 330 U.S. 804, 67 S.Ct. 973, 91 L.Ed. 1262, has the same authority on the issue of justiciability as Colegrove v. Green, upon which it is based.
Moreover, the opinion of the three justices who found the issue in Colegrove v. Green to be nonjusticiable is distinguishable from this case. There is no question here of interference with Congress in its power to control the manner of holding elections. There is no necessity for this Court to remap the State politically, nor for the Georgia General Assembly to take
MacDougall v. Green, supra, involved issues of justiciability substantially similar to Colegrove v. Green. A majority of the Court decided the case on its merits, holding that the discrimination complained of was not of sufficient degree to warrant judicial correction. The Court took jurisdiction of the case in order to decide the substantive issues involved. Furthermore, MacDougall v. Green related only to the direction from which political initiative may be permitted to cоme; it is not authority for permitting gross dilution of a ballot cast.
The cases cited above sustaining the justiciability of the instant case are also authority for the fundamental jurisdiction of this Court to grant equitable relief. In Colegrove v. Green, supra, a majority of the Court found no want of equity, though a majority, differently composed, concluded that the relief sought should be denied. In MacDougall v. Green, supra, a majority of the Court refused relief on substantive grounds, but interposed no bar to the exercise of equitable jurisdiction. See also Rice v. Elmore, 4 Cir., 165 F.2d 387, certiorari denied 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151.
From these cases there can be no longer any doubt that the protection of individual political rights is within the legitimate exercise of equitable power where the consequences of a decree do not present practical difficulties to its enforcement. Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909, has been so interpreted by the Supreme Court. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Colegrove v. Green, supra, dissent.
Keeping in mind the nature of federal equity jurisdiction, and that it should be most sparingly exercised in State elec- tions, the controlling question in this case is one of equitable discretion: Are the probable consequences of a decree such that equity should withhold its hand? The vote of a citizen living on one side of Moreland Avenue in Atlanta, DeKalb County, equals five of his neighbor directly across the street in Atlanta, Fulton County. This discrimination imposed by the Statute in the most flagrant instance in the ratio of 122 to 1 and on an average ratio of approximately 11 to 1 is so apparent and so unjustifiable on any reasonable basis of classification that only the most compelling reasons should influence this Court to refuse relief.
I am unable to find any unpalatable practical consequences to the granting of an injunction in this case. There will be no necessity for this Court to supervise any election, an eventuality upon which Giles v. Harris, turned. The gross discrimination wrought by the offending statute occurs after the votes have been cast and counted by a method employed by the State Democratiс Executive Committee and its chairman and secretary. The effective application of the discrimination to the plaintiffs occurs when the nominees are placed on the general election ballot by the Secretary of State. All of these instruments of discrimination are defendants here and an injunction forbidding their actions under the offending statute will effectively end the discrimination. The relief granted in Rice v. Elmore, supra, required of the Court vastly greater supervision of the electoral process than is asked or required in this case.
Granting of injunctive relief will not bring about any of the practical consequences feared by the Court in Colegrove v. Green, supra. No disruption of a pending election will ensue. The only change which will be effected is the method of consolidating the vote at the top level of the Georgia Democratic Party. The votes will be cast and counted in precinct, ward and county without change or interruptiоn. The Georgia General Assembly need take no action to provide an alternative method of determining nominees, for under Georg-
These cases have no application to the case at bar. The District Court in each case based its decision on Colegrove v. Green, supra. As discussed above, that case is authority only for the discretionary power of equity to deny relief under the circumstances of that case. In the earlier county unit cases, the plaintiffs sought to overturn a completed primary election after they had participated in the primary without objection, on the grounds that candidates for whom they had voted received a plurality of votes cast in their respective contests but were not declared nominees of the party. The candidates themselves did not complain and one of them even went so far as to intervene to ask that the suit be dismissed.
The consequences of injunctive relief in those two cases presented practical problems in the exercise of the Court‘s discretionary powers not perceivable in the instant case, and viewed in this light the District Court decisions in them are not precedent for denial of relief here: Furthermore, since rendition of the District Court opinions in these cases, the Supreme Court of the United States took jurisdiction to decide the substantive issues in MacDougall v. Green, supra.
I am of the opinion that plaintiffs are entitled to a declaration that the Statute attacked is invalid and that an injunction should issue to restrain the application of the county unit system to future statewide Democratic Party elections in Georgia.