UNITED STATES v. RAINES

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Argument of Rogers

Chief Justice Earl Warren: Number 64, United States, Appellant, versus James Griggs Raines et al.

Mr. Attorney General, you may proceed with your argument.

Mr. Rogers: Mr. Chief Justice, may it please the Court.

This case which is here on appeal from United States District Court for the Middle District of Georgia involves the constitutionality of the Civil Rights Act, or at least the major portion of the Civil Rights Act of 1957.

It is the first statute passed by Congress to protect the voting rights guaranteed by the Fifteenth Amendment of the Constitution, in 87 years.

This present case, brought in the name of and on behalf of the United States, is the first case under that Act.

It is of significance not because there's any substantial legal problem involved, because I think there is none, but rather because it involves the basic right of people in the democracy, the right -- right to vote without a discrimination on account of race or color.

The decision of the District Court holding the Civil Rights Act of 1957 unconstitutional is, we submit, clearly wrong.

It has delayed and hampered the United States in its enforcement of the Fifteenth Amendment of the Constitution and prevented us to that extent, from making it fully effective for citizens of the Negro race.

This is a civil action for preventive relief brought on September 4th, 1958 against the registrar and deputy registrars of Terrell County, Georgia for refusing to permit Negroes to register -- Negroes who were fully qualified.

The complaint seeks to enjoin these state officials from refusing, for reasons of race or color, to permit fully qualified Negroes to register to vote.

The discriminatory acts and practices complained of in the complaint include undue delay in processing application -- applications of Negroes.

Refusal to permit qualified Negroes, qualified under the laws of Georgia, to register to vote and the application of more stringent standards for Negro applicants, then for white.

The complaint sets forth the comprehensive plan on the part of these defendants, who are state officials, to deny Negroes their right to vote under the Constitution and the Civil Rights Act of 1957.

Included are allegations that the defendants kept different records, voting records by race.

Allegations that, in connection with applications for registration, there were different colored cards for white applicants and Negro applicants.

The complaint sets forth in considerable detail how this plan was accomplished.

For example, the complaint lists the names of five Negroes who applied to register in 1956 and five who applied in 1957.

And yet, their applications were not acted upon until April of 1958.

Yet during the same period of time, 13 white applicants applied and their applications were acted on within a day or two and in no case more than 11 days.

The complaint shows how the defendants arbitrarily refused to register fully qualified Negroes, fully qualified under the laws of Georgia.

For example, it states that four Negroes took a literacy test as required under the law of Georgia.

One was a teacher in mathematics in a public high school in Terrell County and held a Bachelor of Science degree from a Georgia college and a Master of Arts degree from New York University.

The other three were teachers in the elementary public schools in Georgia and each one of these three had graduated from Albany State College and held a degree from Albany State College, Georgia.

The complaint alleges that the reasons given by these appellees for refusing to permit these four Negroes to register was that they could not read correctly or because they were unable to write.

Stated another way then, the complaint alleges that the State of Georgia refused to let Negroes who were teachers in their public schools who had graduated from their colleges and who held degrees from colleges in Georgia, from registering to vote on the ground that they were illiterate

.A motion to dismiss this complaint was made on four grounds, September 1958.

The District Court, in April 1959, dismissed the first three grounds, holding that the complaint stated cause of action that the Congress was authorized to provide for injunctive relief, even though the -- and not require the exhaustion of all other remedies and that the complaint should not be dismissed in the court's discretion.

The fourth ground, which is the basis for this appeal, was that the portion of the Civil Rights Act of 1957 providing for an injunctive relief is unconstitutional.

On considering that contention, the District Court did not find that the allegations in this complaint against these defendants, who were officers of the State acting under color of law, violated any constitutional provision.

Rather, the District Court said in considering the constitutional question, said this, “We must close our mind to the allegations of the complaint in the instant case.”

The court then stated that the question presented was whether the Civil Rights Act of 1957 was broad enough to permit the United States to bring suits against private persons not acting under color of law.

The court justified this approach for the case, that the constitutionality of a statute must be tested on the basis of facts actually presented but rather on the basis of hypothetical facts, by saying this, and I quote from the court's opinion, “It is not for this court to decide whether this particular fish is properly within the net, but whether the net is so large is to cash -- catch many fish not properly within it.”

The District Court then proceeded to weave its own net, much -- much larger than this language of the statute justifies, much broader than -- than Congress intended.

And not the one that applied with the justice used in this case or in fact, whatever consider using.

It held that 42 U.S.C. 1971, it's set forth in our brief on page -- pages 2, 3 and 4, subsection (a) and (c), read together, “Were broad enough to permit suits for injunctive relief against private actions by private individuals not acting under color of law and therefore, that these provisions were unconstitutional in toto.

The United States has appealed directly to this Court.

The outset, I would like to deal briefly what the appellees' challenge to the Court's jurisdiction.

Jurisdiction of this appeal is based on 28 U.S.C. 1252 and as you know, provides for an appeal of this Court from any interlocutory or final order of any court, holding an act of Congress unconstitutional in any civil action to which the United States is a party.

This is a civil action to which the United States is a party.

The order dismissing the complaint was a final order.

The holding of the District Court and the exclusive basis for its decision was, “That Section 1971 (c) of Title 42 is beyond the jurisdiction of Congress and unconstitutional.”

What then is the contention of the appellees?

They contend that because the United States in its jurisdictional statement, filed with the court, has injected another question into the case, that the court therefore, does not have jurisdiction.

The Government did not, in fact, inject any new question into this case.

To be sure, we contend that the District Court's decision was -- rested on an erroneous construction of the statute, but that does not and cannot deprive this Court of jurisdiction under 28 U.S.C.

The purpose of the statute is to make sure that any decision holding a federal statute unconstitutional is reviewed quickly by this Court.

It is irrelevant for purposes of jurisdiction.

How erroneous the court's construction of the statute was or how unnecessary it may have been for the court to reach and decide a constitutional question?

What is relevant and crucial is the holding of the District Court.

If it is a decision holding that an act of Congress unconstitutional in a civil action in which the United States is a party, then a direct appeal to this Court clearly lies.

This case therefore, we believe, comes directly within the expressed terms of Section 1252.

Before dealing with the constitutional question decided by the court, I'd like to refer briefly to an argument stressed by counsel for appellees in their brief.

Counsel say that if the appellees engaged in the practices alleged in the complaint, that they would have been guilty of violating the laws of Georgia.

Therefore, it is contended that even though the State registrars and the deputy registrars refuse to permit fully qualified Negroes to vote because of race or color that the State of Georgia did not deny citizens the right to vote on account of race or color.

That's what is argued that the acts of the appellees were not the acts of the State within the meaning of the Fifteenth Amendment.

This argument is so specious that I only want to make brief comments about it.

The contention has been made many times, decided many times by this Court.

These decisions are referred to in our reply brief, particularly the comprehensive opinion by Chief Justice White in the Home Telephone & Telegraph Company case.

The gist of these cases is that it is state action when state officers act for and in the name of the State.

Would otherwise, the Fifteenth Amendment to the Constitution would be meaningless because the State, in order to circumvent, it would merely have to pass laws to provide the Negroes with full equality, the right to vote without discrimination as to race or color, in order to comply with the Federal Constitution and principle, while permitting state officers to disregard in practice these laws with impunity.

Fortunately for our nation, as this Court has many times held, there's no such debility in our constitutional system.

Turning now to the decision of the District Court, as I say, the constitutional provisions -- the statutory provisions are set forth in our brief on pages 2, 3 and 4.

Subsection (a) is a reenactment of a provision of the civil rights statute of 1870.

Subsections (b) and (c) were added by the Civil Rights Act of 1957.

Subsection (a) applies to all elections, both state and federal, and it implements the Fifteenth Amendment.

It prohibits discrimination in the voting process on account of race or color by state action.

Subsection (b) secures the right to vote in federal elections, as guaranteed by Article 1, Sections 4 and 8 of the Constitution.

It protects the right to vote in federal elections, not only against state action, but against individual action unrelated to any governmental responsibility.

Subsection (c) merely gives the United States authority to bring a civil action to enforce either subsection (a) or (b).

In order to reach the conclusion that subsection (c) was unconstitutional, the District Court had to find that subsection (a) was intended to be broader and more inclusive than the Fifteenth Amendment.

Other four reasons why this construction -- strained construction of that statute, I believe, was wrong and I will merely summarize these reasons.

The language of the statute makes it clear that its application was to state action and I'm referring now to subsection (a).

It provides that there shall be no discrimination in voting on account of race or color, “Any constitution, law, custom usage, or a regulation of any state or territory or by or under its authority to the contrary, notwithstanding.”

The contrasting language of subsection (b) starts out and reaches this way, “No person, whether acting under color of law or otherwise, shall intimidate and so forth.”

This distinguishes the two subsections.

Subsection (b) applies only to federal elections after which the power of Congress is not limited by the Fifteenth Amendment and applies to any person, whether acting under color of law or not.

While subsection (a) applies to both state and federal elections and was intended only to implement the Fifteenth Amendment and applies only to persons acting under color of law.

So that I think that the language of the statutes or the -- the language of those sections, make it very clear that the District Court was wrong.

The second reason makes it perfectly clear that the District Court was wrong is the legislative history or the original Act in 1870, which is fully set forth in our brief.

There was no question about it from the legislative history of that Act that this statute was intended to implement the Fifteenth Amendment of the Constitution.

Third reason is that the legislative history of the Civil Rights Act of 1957 makes it clear that this subsection was to implement the Fifteenth Amendment only.

Both the House and the Senate Committee Reports make it clear.

The House Committee Report on the bill reproduced a letter from the Attorney General referring to the subsection which said this, “Statute is limited however, to deprivations of voting rights by state offices or other persons purporting to act under color of law.”

Throughout the debate on the bill and it was – it was certainly scrutinized at every stage of the legislative process.

The legislators in both Houses viewed what – what are now subsections (a) and (c) taken together as implementing the Fifteenth Amendment and that purely private action could not be reached.

Fourth is a series – a series of cases in this Court, the most recent of which is Terry against Adams, which gave full force and effect of subsection (a).

And in so doing, the Court held that it was adopted by the Congress to implement the Fifteenth Amendment to the Constitution.

We submit, therefore, that the District Court's decision is erroneous because the statute cannot by any reasonable hypothesis, either by its own language or by legislative history or by the decisions of this Court, be construed to apply to wholly private action unrelated to any governmental activity.

But in any event, even if it could be assumed by some stretch of the imagination that the court was correct in its conclusion that it could be applied to purely private action, the judgment in this case is wrong.

This Court in a long series of cases has held that the proper scope of judicial review and to determine whether a statute is -- is valid as applied to the facts in the case.

It is interesting to note that the identical legal question, identical to the question here before this Court, was presented to Judge Wright, seating in the Eastern District of Louisiana in October 1959, in United States against McKelvey and he disposed of this matter for saying this.

The defendant's contention is so obviously without merit that the court would merely deny the motion to dismiss without Moore were it not for the fact that a District Court, referring to this case, has upheld a similar contention and declared 1971 (c) unconstitutional.

Justice Felix Frankfurter: What's the name of that case?

Mr. Rogers: United States against McKelvey, 177 F.Supp.355.

Unknown Speaker: (Inaudible)

Mr. Rogers: Yes, it is.

In our reply brief.

Unknown Speaker: Reply brief.

Mr. Rogers: Yes.

Now, in so doing, the Court ignored the most elementary principles of statutory construction, as repeatedly announced by the Supreme Court and relied on an old case interpreting a criminal statute.

That was the end of Judge Wright's opinion, referring to this.

The case referred to is United States against Reese, 92 U.S., decided in 1875.

We've cited in our brief many cases decided by this Court since that time which had rejected or discarded the rule in the Reese case.

The established rule, as -- it's been decided so often by this Court, is that a statute should not be held invalid as -- as whole, if part of it is capable of being given effect.

Judge Brandeis stated in the Dorchy case, the well known case is Dorchy against Kansas.

A statute bad in part is not necessarily void in its entirety.

Provisions within a legislative power may stand if separable from the bad.

There was no problem here of separability.

There was no problem of separating the valid portion of the statute from the portion that the District Court claimed it thought was invalid, nor is any question that Congress would have so intended because that's all Congress had in mind.

There was nothing in the legislative history that suggested that this injunctive relief provided by subsection (a) and (c) was ever to be directed against purely private action.

In conclusion then, it is our view that once the District Court found that the statute as applied to this case was valid, that that should have been the end of the matter.

A litigant may challenge the constitutionality of a statute only insofar as it affects him and not as it affects some stranger to the suit.

A proper judicial approach to questions of this character is no longer open to -- to doubt or to argument.

The guidepost -- the fundamental guideposts have been clearly marked up by this Court and that, we submit that the District Court did not follow those guideposts.

It's the duty of a District Court to save a statute, not to destroy it.

The court should not anticipate a question of Constitutional law in advance in necessity of deciding it.

It must deal with the case at hand and not with imaginary ones.

The District Court had followed these basic principles.

It would have held the statute constitutional and accordingly deny the motion to dismiss.

Certainly, in the instant case which is brought against state officers who have discriminated against Negroes who are fully qualified, discriminated by denying them the right to register to vote.

And there is no question about the fact that they are state officers acting under the authority of a state.

Certainly in that situation, the constitutionality of the Civil Rights Act of 1957 is entirely free from doubt.

The Government respectfully submits that the judgment of the District Court should be reversed and the case permitted to go forward in order that the voting rights alleged here to have been denied to these Negroes, maybe fully and properly vindicated.

Chief Justice Earl Warren: Mr. Bloch.

Argument of Charles J. Bloch

Mr. Charles J. Bloch: May it please the Court.

The day I left Georgia last Saturday, we received the reply brief from the Government which I have not had an opportunity yet to answer and I would like permission to file a reply to that reply brief.

Chief Justice Earl Warren: If it could be done expeditiously --

Mr. Charles J. Bloch: Sir.

Chief Justice Earl Warren: If it can be done expeditiously.

Mr. Charles J. Bloch: 10 days.

Chief Justice Earl Warren: Well, we get at these cases to decide them before that, but --

Mr. Charles J. Bloch: I'll get it here just as fast as --

Chief Justice Earl Warren: Could you get them this week, please?

Mr. Charles J. Bloch: But for fear that I --

Chief Justice Earl Warren: Yes.

Mr. Charles J. Bloch: Do not get it here in time, Mr. -- Your Honors, I want to call attention to one thing in there and that is an error in our original briefs.

In our original brief, on page 34, about the 3, 4, 5, 6, 7, 8, 9, 10, 11, 11th or 12th line from the bottom of the page on page 34, there's a quotation mark after the word, “attributes.”

The Government calls attention in its reply briefs to the fact that that quotation is misplaced and it is.

Through an error of -- stenographic error or the printer, I don't know which.

The quotation mark should be after the word, “modifications.”

And I thought at the outset, I should call the -- the Court's attention to the fact that that criticism on the part of the Attorney General of that misplaced quotation mark is correct.

To please the Court, that it is seemed to us, in the preparation of this case that they are presented by this appeal, three salient questions.

First is the Civil Rights Act of 1957, appropriate legislation to sort to the Fifteenth Amendment.

Secondly, are the appellees here in such position that they have a standing to challenge the alleged invalidity of the Act of 1957.

And thirdly, a question which seems to me to permeate the whole case are the acts complained of by idea of Attorney General or the pleader in the complaint in the District Court, do those Acts constitute any -- an abridgment or denial on the part of the State of Georgia of the constitutional rights of these Negro citizens under the Fifteenth Amendment or don't the allegations of the complaint show that those alleged acts on the part of Mr. Raines and the other registrars, if taken as true as we must on the motion here, of their individual acts and not an abridgment or denial in any constitutional rights of these colored people by the State of Georgia.

Justice John M. Harlan: Do you, sir -- do you continue to – do you continue to rest your point --

Mr. Charles J. Bloch: I'm sorry?

Justice John M. Harlan: (Voice Overlap) brief.

Do you have -- do you continue to make a point to make in your brief that we have no appellate jurisdiction by direct review here?

Mr. Charles J. Bloch: No, sir.

I've – I --

Justice John M. Harlan: You amended that point?

Mr. Charles J. Bloch: I devoted about half a three quarters of a page to that question --

Justice John M. Harlan: I assume that if necessary serious --

Mr. Charles J. Bloch: -- in the brief, but I don't think there's any question, but what the Court has jurisdiction to entertain this appeal.

I, at one time thought that by reason of the fact that the Government had injected into the case, the question of whether or not the -- these people had the standing to challenge that that was the primary question and not the constitutional question, but I think they're so related that under 1252, the Court has jurisdiction.

I think that I was about to say that as a corollary to the question of whether or not, the acts complained of here are the acts of the State of Georgia, whether the actions of these individuals were denials -- constituted denials or abridgments by the State of Georgia, maybe further demonstrated by the fact that the State of Georgia has not had an opportunity to correct these alleged wrongful acts.

And the laws of the State of Georgia, if the averments of this complaint are true, the laws of the State of Georgia provide an ample judicial remedy by which the alleged wrongful act of these registrars could have been tested in the Georgia courts and we take the position, Your Honors, that that isn't a question of exhaustion -- exhaustion of administrative remedies.

But we take the position that aside from any other question in this case that until the courts of Georgia had had an opportunity to pass on the alleged discriminations of Mr. Raines and these other gentlemen, that there has not and cannot have been any abridgment or denial by the State of Georgia.

Now, to go back to the first question, is the -- the legislation that we assailed and that Judge Davis held unconstitutional, is it appropriate legislation under the Fifteenth Amendment.

Now, to -- to answer that question or to -- to try to answer it, I think it's important that we first go back to the state of the law -- the state of the statute law as it was prior to the enactment of the Civil Rights Act of 1957.

Back in the reconstruction days, there were a great many civil rights acts passed, various parts of them were declared unconstitutional by this Court in United States versus Cruikshank, the civil rights cases, United States against Harris and United States against Reese and other cases.

But there remained one section which was carried forward from year to year and when the United State Code was adopted, it appeared in the United States Code under Title 42, Section 1971.

Now that's an exact reading, Your Honors, of the exact language of that section, is most important in the consideration of the problem that we're discussing.

Section (a) of 42-1971 which the distinguished -- my distinguished friend, the Attorney General, contends -- comprehends state action, so to speak, is this, “All citizens of the United States who are otherwise qualified by a law to vote at any election by the people in any state, territory, district, county, city, parish, township, school district, municipality, or any territorial subdivision, shall be entitled and allowed to vote at all such elections without distinction of race, color or previous condition of servitude any constitution, law, custom, usage or regulation of any state or territory or by or under its authority to the contrary notwithstanding.

Now, the primary disagreement between counsel for the Government and counsel for the appellees, the registrars, from the inception of this case almost has been whether that old law which is carried forward into the Civil Rights Act of 1957, whether that old law comprehended only an abridgment or denial by a state or to use the colloquial phrase it's grown up, contemplated the state action.

Well, we respectfully submit, Your Honors, that the language of that statute, that original statute, is broad enough to cover private action, the action of private individuals.

Now, all that can --

Justice William O. Douglas: Were these – were these appellees acting as private citizens here?

Mr. Charles J. Bloch: I'm sorry, sir.

Justice William O. Douglas: Were these appellees acting as private citizens or were they acting as officials of the Government of Georgia?

Mr. Charles J. Bloch: Were these people acting as private citizens?

Justice William O. Douglas: Yes.

Mr. Charles J. Bloch: They were acting -- I should say, they were not acting as private citizens.

They would not have had an opportunity to do what they alleged to have done if there hadn't been county register, if there haven't been registrars.

But, Mr. Justice, as I'll presently show you in another face of it or I can now, if you want, the averments of the complaint are rather important right at that juncture.

If the Court will look at the complaint, it appears in the record starting at page 1 and it's – it's important from two aspects, not only with respect to the question that Mr. Justice Douglas just asked, but with respect to this question.

If you don't mind, sir, I'll allude to this first, and then come to your question.

What are the right -- what is the right conferred by that Section (a) alone?

Now, Your Honors will notice that there isn't any sanction or there haven't been prior to 1957.

It was a declaration of the right of citizens without any penalty for its violation, without any sanction attached to it at all.

Now, that it comprehended individual action, as well as acts which might comprise denials or abridgment by the State, is shown by the very construction which the Government gives to that Section (a) in the very first paragraph of its complaint in the court below.

The Government there says this action is brought under part 4 of the Civil Rights Act of 1957 to obtain preventive relief against acts and practices by the defendants which would deprive other persons the rights and privileges secured by subsection (a) of 42 U.S.C. 1971, namely, the right and privilege of citizens of the United States who are otherwise qualified by law to vote at any election by the people in the State of Georgia to be entitled and allowed to vote in -- at all such elections without distinction of race or color.

In other words, Your Honors, the Government admits in the very first paragraph of this complaint which was passed on by His Honor, Judge Davis, that the right conferred by that old statute of 1870 was not the right to be secure in being entitled and allowed to vote from interference from deprivation from abridgment by the State, but the very broad right of being permitted, entitled and allowed.

That word, “allowed” means something.

Entitle and allowed to vote at any such election without distinction as to race or color.

sNow, the Government takes the position, and has all through, I believe, that the use of the phrase by the Congress of 1870 of thereabouts, without distinction, any constitution, law, custom usage, or regulation of any state or territory or by or under its authority to the contrary notwithstanding.

That the use of that phrase demonstrates that only state action, abridgment or denial by the State, was contemplated in that statement of principle.

Now, we have violently, all the way through, disagreed without – with that construction and convince the court that our disagreement below -- that our disagreement was correct because the court so-construed that 1971 (a) is to comprehend individual action, as well as abridgments or denial by the State.

Now furthermore, that construction -- our construction of this -- of that Section (a) is proven to be correct by the fact that when the gentleman in the Department of Justice, who say where he may have been, came to draw this complaint upon which this action is based.

He was not content to rely on the language of the statute.

Chief Justice Earl Warren: Mr. Bloch, we'll recess now.

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Argument of Charles J. Bloch

Chief Justice Earl Warren: Mr. Bloch, you may proceed with your argument.

Mr. Charles J. Bloch: May it please the Court.

At the lunch hour -- the commencement of the lunch hour, I was about to state that if Section (a) of the present statute means only state action or means only acts which constitute an abridgment or denial on the part of a State, I can't help but wonder why it is that the drafter of the complaint in this case thought it necessary to allege in paragraph 3 of the complaint, appearing at page 2 of the record.

“Defendants are citizens of the United States and of the State of Georgia and while discharging the duties of the officers aforesaid, were acting under color of law of the State of Georgia.”

Now, Your Honors, if -- if Section (a) of the Act contemplates only deprivations or abridgments by a State, why was it necessary for the pleader to allege in this complaint that these defendants were acting under color of law of the State of Georgia?

If -- if time permits or certainly, when Your Honors have occasioned the opportunity to read the statute in -- in full, Your Honors will notice that that phrase, “color of law” is not used in Section (c) or (d) of the Civil Rights Act of 1957.

The only time that that phrase occurs in the Act of 1957 is in Section (b) wherein it is stated that whether or not the acts were under color of law, that the court has jurisdiction in connection with Section (c), but we're not concerned with that Section (b) here because, as the Attorney General pointed out in his opening argument, that subsection has to do only with federal elections.

Now, Your Honor is coming to the question which was propounded before the recess by His Honor, Justice Douglas, as apprentice to that, may I point out that in the -- as a prentice to an answer to it, may I point out that in the Attorney General's opening argument, he referred to the comprehensive plan of these defendants.

Comprehensive plan of these defendants and if I understood the Attorney General correctly, he also said that these defendants arbitrarily refuse persons qualified under the laws of the State of Georgia.

Now, furthermore, sir, in the complaint -- in the complaint in many places that are pointed out in the briefs specifically, many places, is it alleged that these actions which must, if there's a case here, which must constitute a denial or abridgment by the State of Georgia.

That these actions fairly construed were those of these defendants as individuals proceeding directly contrary to the laws of Georgia.

Now, for instance, on page 3 of the record, in paragraph 9, “On and after the times defendants assume their offices, they have engaged doctrine and are continuing to engage in acts and practices designed and intended to deny the right to vote to Negro citizens of the State of Georgia.”

Then, down at the bottom of the pages -- page, occurs the word, “arbitrary refusal” and then, “discriminatory application.”

Now, most important to me, on the next page, said acts and practices were and are further designed and intended by the defendants to perpetuate the disparity referred to in paragraph 5 between the registration of white citizen and Negro citizen in the State of Georgia.

And further, it's alleged in the complaint, on page 5 of the record that the delay was not accidental, but for the purpose of depriving them of their right to vote.

On page 6, in paragraph 14, that the Defendants were arbitrarily and without legal cause and solely for racial reasons, prevented by said defendants from demonstrating their ability to write correctly.

And on page 7 again, arbitrarily and without legal cause, in paragraph 16 and again defendants, in the administration of the literate test, have applied different and more stringent registration.

And finally, in paragraph 18, there on page 7, “The application of different standards by defendants of the aforesaid was not accidental, but was designed and intended by them.

A statute of the State of Georgia?

No.

Contention of the State of Georgia?

No.

Designed by these defendants and intended by them to discriminate.

Now, where does that lead us?

The question propounded from the bench indicates that simply because as are -- indicates that it may be said that simply because these men were state officers performing a duty required by the State law at the time that whatever they did even though they violated these command -- the statutory command of the State of Georgia, that whatever they did when a person came in to register would constitute an abridgment or denial by the State.

The State's passed a statute that says what these defendants or what these appellees -- what these Registrars shall do in the administration of the registration laws.

That statute appears as an appendix -- an appendix to our brief.

It also appears in -- in the record and, I think, I counted here this morning 17 times the word, “shall” occurs in that statute.

Now, when the State of Georgia solemnly adopts a statute and says those who are charged with administering that statute, shall do certain things, can it be considered as an abridgment or denial of constitutional rights by the State of Georgia when alleged individuals allegedly design practices of their own contrary to the laws of the State of Georgia?

Where is the abridgment or denial on the part of the State, merely because the men happened to be state officers at the time?

Well now, that question was answered by this Court many years ago in the -- in the Barney case, Barney against the City of New York.

Now, if right striking that, in that Barney case, the distinguished counsel for Mr. Barney was Mr. Maxwell Evarts.

And he argued before this Court, “This question, however, whether the acts of the Transit Authority is -- of the City of New York were actions of the State or not, this question however, is no longer open for argument.

Any act of an agent of a State done pursuant to the powers derived by him from the legislature and by which of his public position as such agent, whether specifically authorized by the statute appoint him -- or him or not, is an -- is an act of the State within the meaning of the Fourteenth Amendment of the Constitution.

The fact that the Rapid Transit Commissioners have some duties and powers in the construction of a rapid transit railroad does not commit to the State any act of theirs is in plain excess of their authority, was the contrary argument.

Now, the court there in 193rd U.S., held that the acts of the transit authorities of the City of New York did not constitute an abridgment or denial by the State, because the -- on account of the excess of the authority -- on account of the plan designed by them, it ceased to be any act of the State, or it could not ever have become an act of the State.

Now, is Barney still the law?

It's urgently contended by the Government that the Barney case was impliedly overruled by the Los Angeles case of the Home Telephone Company in the 227 U.S.

And in this reply brief most recently filed, it is stated that we have not, on our part, filed any -- cited any case since the 227 U.S. which shows that the Barney case is still the law.But now, the -- the Government has never referred to Snowden against Hughes.

And we allude to it very skimpily in our brief, but Snowden against Hughes, as some of Your Honors now sitting, recall was decided by this Court in 1943 or 1944.

It so happens that the -- they're only three Justices now sitting who were on the bench at the time Snowden versus Hughes was decided.

One of those Justices used this language, “But to constitute” -- I'm reading from page 16 of that opinion.

“But to constitute such unjust discrimination, the action must be that of the State.

Since the State, for present purposes, can only act through functionaries, the question naturally arises what functionaries acting under what circumstances are to be deemed the State for purposes of bringing suit in the federal courts on the basis of illegal state action.

The problem is dissent with inherent difficulties and not unnaturally, it had a fluctuating history in the decisions of this Court.”

And then, the Justice says “Compare Barney with Raymond versus Chicago Traction Company, Memphis versus Cumberland Telephone Company, with Home Telephone and Telegraph Company versus Los Angeles which is a case so urgently relied on by the Government.

And then comes this sentence and this sentence is a reason I detailed at some length, what this complaint says here.

It is not to be resolved by abstract considerations, such as the fact that every official who purports the willpower conferred by a State is portend to the State.

Otherwise, every illegal discrimination by a policeman on the beat would be state action for purposes of suit in the federal court.”

Then said the Justice, “I am clear therefore, that the action of the Canvassing Board, taken as the plaintiff himself acknowledges in defiance of the duty of that board under Illinois law, cannot be deemed the action of the State, certainly not until the highest court of the State confirms such action and thereby, makes it the law of the State.”

I agree in a word with the court below that Barney versus City of New York, 193 U.S. 430, is controlling.

Neither the wisdom of its reasoning nor its holdings has been impaired by a subsequent decision.

Now, Your Honors, that -- that points out the other necessity, too, -- the other necessity too, of considering here that if what I briefly alluded to at the outset, that if these gentlemen did design this plan, if they did design it to arbitrarily -- so as to arbitrarily discriminate against Negro citizens, we have statutes in Georgia which give these applicants a right to appeal to the Superior Court of Terrell County, Georgia, which -- statutes which provide that those appeals shall be held at the first time -- argued at the first time, statutes which provide an appeal to the Court of Appeals and the Supreme Court.

I'm sorry.

There was another point I wish to discuss, but my time is up.

Thank you.

Chief Justice Earl Warren: (Inaudible) this point.

Argument of Attorney General

Mr. Attorney General: Mr. Chief Justice, I have no further argument.

Chief Justice Earl Warren: Very well.