GOMILLION v. LIGHTFOOT

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Argument of Fred D. Gray

Chief Justice Earl Warren: Number 32, C. G. Gomillion, et al., Petitioners, versus Phil M. Lightfoot, as Mayor of the City of Tuskegee.

Mr. Gray.

Mr. Fred D. Gray: May it please the Court.

The argument of the petitioners is divided into two parts.

I shall present to the Court the statement of a fact and its surrounding circumstances.

Mr. Carter will argue the questions of law applicable to the facts in this case.

We feel that the facts in this case, as alleged in the complaint, are so important that we help reproduced an enlarged copy of the -- of Exhibit 2 that is attached to the complaint which appears on page 13 of the record.

They -- the Court, in understanding the facts, we shall periodically refer to this map in the (Inaudible), pointing out --

Justice William J. Brennan: (Inaudible)

Mr. Fred D. Gray: Yes, sir, that is an enlargement of the exhibit on page 13 of the record.

We shall periodically refer to this map pointing out certain facts as alleged in the complaint.

This is a class action instituted by 12 Negroes who are former residents in the City of Tuskegee, Alabama, as the limits of that city were front to the enactment of Act No. 140.

Justice William J. Brennan: (Inaudible)

Mr. Fred D. Gray: Yes, sir.

The original limits extend the southern boundaries to this land, the northern boundaries to this land, the western boundaries to the land here and the eastern boundaries to the land here.

Those are the limits as they exist prior to the enactment of Act No. 140.

Justice William J. Brennan: (Inaudible)

Mr. Fred D. Gray: The black line represents the present boundary.

140 changed the land which was withdrawing it from here to this point and it made these various figures as indicating cutting in certain areas.

Justice William J. Brennan: Well, what in any size that (Inaudible)

Mr. Fred D. Gray: No, sir.

It was in the black line represents what is in the municipality and what's on the outside represents what formally was in the municipality.

Justice Felix Frankfurter: May I ask how long the old limit were had been in existence?

Mr. Fred D. Gray: I am not sure, Your Honor, but I'm sure it has been in existence for some over 10 years, I believe.

I'm not sure.

Justice Felix Frankfurter: Where is the Tuskegee Institute on that map?

Mr. Fred D. Gray: Tuskegee Institute is here, in the northwest corner.

It is no longer in the city.

Justice Felix Frankfurter: That's -- that's now outside.

Mr. Fred D. Gray: It is now outside.

Yes, sir.

Justice Felix Frankfurter: Well, where the -- this is just geographic, historical interest, when was the Institute founded by?

Mr. Fred D. Gray: The Institute was founded in --

Justice Felix Frankfurter: Certainly --

Mr. Fred D. Gray: I believe it was 1860, in 1860 something, I'm not sure.

Justice Felix Frankfurter: As early as that?

Mr. Fred D. Gray: Sir?

Yes, sir.

Justice Felix Frankfurter: Well, when did (Inaudible) Washington gets there?

Do you have any idea?

Mr. Fred D. Gray: I'm not --

Justice Felix Frankfurter: It's there about the turn of the century, wasn't it?

Mr. Fred D. Gray: Yes, sir.

The -- this class action is on behalf of 12 Negroes.

All 12 of these Negroes lived in various areas outside of the present city but within the former city limits of Tuskegee.

The action originated in the Federal District Court for the Middle District of Alabama.

And the District Court there dismissed petitioners' complaint without a hearing on the merits.

From that action, the petitioners appealed to the Court of Appeals and a divided court affirmed the ruling of the District Court and this Court granted certiorari.

The complaint alleged the challenge, the constitutionality of Act 140, which Act, as I have just indicated, changed these boundaries from their old position to their present position.

Petitioners alleged that the bill on its face does not disclose any purpose for redefining the Act.

Justice William J. Brennan: Mr. Gray --

Mr. Fred D. Gray: Yes, sir.

Justice William J. Brennan: -- now, what's the (Inaudible)

Mr. Fred D. Gray: It is not amiss valid of any kind, it is simply a file of the county as a whole.

Petitioners --

Justice Felix Frankfurter: What is the name of the county, Mr. Gray?

Mr. Fred D. Gray: Macon County.

Justice Felix Frankfurter: Macon.

Mr. Fred D. Gray: Which Tuskegee is the county sit.

Justice Felix Frankfurter: And what -- what's the -- what was the population within the old boundaries and what is -- in the present boundaries?

Mr. Fred D. Gray: The old population was approximately just better than 6000.

We are unable to determine now the new boundaries.

A census has just been taken and those figures are not available at this time.

Petitioners have alleged that the obvious purpose and the sole purpose for the enactment of this statute is to deprive petitioners and the class they represent of the right to be residents of the City of Tuskegee to deny them the right to vote in municipal election solely because of their race and color.

We further allege in the complaint that this exclusionary purpose and the effect is revealed among other things back the map and about all the matters which we shall call to the Court's attention as we proceed.

Now, a -- in comparing the old limits of the city with the present limits, we have the following after effects prior to the enactment of Act No. 140, the city, as you can see in the perfect square was a square.

Now, the city begins at this point.

It weaves around and as best we can detect, it includes -- it has 28-different size.

Before the Act, the entire population of the city -- Negro population of the city was 5397.

Justice Felix Frankfurter: State those figures again, please, Mr. Gray.

Mr. Fred D. Gray: 5397 is the Negro popula -- or was the Negro population of the city prior to the Act.

Justice William J. Brennan: (Inaudible)

Mr. Fred D. Gray: Out of the total population of 6000 -- 6600, about 6700.

Now, out of the 5397 Negro residents prior to the Act, there were 400 qualified Negro voters.

Since the Act, all of the concentrated areas, a Negro resident has been excluded, for example, the Tuskegee Institute area and the area on the north east side of the city and on the southwest side of the city going on U.S. Highway 80 going west towards Montgomery.

All of these are concentrated Negro areas and all of these have been put outside the city.

Justice Felix Frankfurter: May I ask you one of two questions?

Mr. Fred D. Gray: Yes, sir.

Justice Felix Frankfurter: You say there were 400 qualified voters.

Do we -- I mean they're on the registry but couldn't vote.

Mr. Fred D. Gray: What -- what I mean is that --

Justice Felix Frankfurter: Well, that -- that -- what I want to know is that do they actually -- they actually exercise a franchise?

Mr. Fred D. Gray: Yes, sir, they did.

Justice Felix Frankfurter: Both for state or county or city elections or --

Mr. Fred D. Gray: For all elections beginning with your municipal election all the way through presidential election.

Justice Felix Frankfurter: Now, did the -- did the old Tuskegee or the -- or the Government one of who are mayor and --

Mr. Fred D. Gray: Yes, sir, there is a mayor and a commission of formal government --

Justice Felix Frankfurter: And then --

Mr. Fred D. Gray: -- city council of former government.

Justice Felix Frankfurter: And those were subject to election.

They were -- they were elected officials?

Mr. Fred D. Gray: Yes, sir.

Justice Felix Frankfurter: Do they have a county commissioners or whatever they call it?

Mr. Fred D. Gray: We have a county vote of revenue and --

Justice Felix Frankfurter: Are they all so popularly elected?

Mr. Fred D. Gray: They are elected but from the county as a whole as well as from residents of Tuskegee.

Justice Felix Frankfurter: Now, in the -- within the new boundaries, are those -- the Negroes that are now contained within the new boundaries, they -- they have the right to vote for -- for county, as I suppose.

Mr. Fred D. Gray: Yes, sir.

Justice Felix Frankfurter: But they -- of course, shed out from any relations to the Government of what is now the City of Tuskegee.

Mr. Fred D. Gray: Exactly and just within the last month, there has been a city election and these Negroes were not permitted to vote in that election.

Justice Charles E. Whittaker: (Inaudible)

Mr. Fred D. Gray: The entire school system in Macon County is a county school system, so the school system at search was not affected.

Justice Charles E. Whittaker: (Inaudible)

Mr. Fred D. Gray: Yes, sir.

Since the Act, there are now only four or five Negro voters in Tuskegee.

Before the Act, Tuskegee contained approximately 1310 white persons of whom approximately 600 are registered voters in the city.

Tuskegee still contains 1310 white persons and it still contain approximately 600 white voters.

In other words, as a result of changing all of these boundaries not one white person as well as we've been able to ascertain has been excluded, for example, going east on U.S. 80 (Inaudible).

There are white residents along the highway.

So the city limit extends outlook along 80 east and includes the white persons and extending in the opposite direction on 80 west where Negroes resides.

The city limit is only about three or four blocks from the downtown section.

This action must be considered, we submit, in the light of the racial composition of Macon County and the history and in the light of the racial composition of Macon County.

For example, Macon -- the residence of Negroes in Macon County has had substantial difficulty in getting registered.

Approximately, 78% of the persons in Macon County are Negroes, leaving only 18% white.

A constitutional amendment to the Alabama Constitution now gives the Legislature the authority to abolish Macon County and divide its territory into the adjoining counties if the need arises.

The complaint further alleges that Act 140 is another device in a continuing attempt on the part of the State of Alabama to disenfranchise Negro residents of Macon County of which Tuskegee is the county seat.

The complaint further alleges that the admitted purpose of the Act was to assure continued white control of Tuskegee City election.

Macon County had no vote of registrars to qualify applicants for more than 18 months at the time this complaint was filed.

And since that time, a vote of registrars has been appointed in Macon County but only three Negroes has been qualified, which means that over a period of some four years, only three Negroes has been able to become registered voters in Macon County.

Justice Felix Frankfurter: Well, may I ask you this.

That situation was it -- has been at all affected or is entirely affected by this attempted redistricting?

Mr. Fred D. Gray: What we're saying is, Your Honor, is that this Act, and we've alleged this in our complaint, should be considered --

Justice Felix Frankfurter: But it's a part of -- I understand that.

So you've said a little while ago.

What I want to know is whether there is any relation between the thing you last said as for the disproportioned Negro representation among the registered and so on?

Is that at all affected?

Is that result influence by or affected by this redistricting?

Mr. Fred D. Gray: No more, Your Honor, than the few Negroes who still remained in Tuskegee who are not registered will have difficulty getting registered as -- is illustrated by the difficulty that they've had over 30 years to get registered.

Justice Felix Frankfurter: For -- for reason unrelated with the logistic?

Mr. Fred D. Gray: Yes, sir.

Justice Felix Frankfurter: Alright.

Chief Justice Earl Warren: Mr. Gray, how -- how about the municipal services of this people we're getting beforehand, are they deprived of all of those services now, let us say fire service, things of that kind?

Are they beyond the fire services of the City of Tuskegee?

Mr. Fred D. Gray: It is my understanding that they are.

Chief Justice Earl Warren: They are.

Mr. Fred D. Gray: Now, in certain areas, I think the city also owns the utilities but the utilities are still furnished but they pay for it.

Justice Felix Frankfurter: I suppose --

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: -- that applies also to police.

Chief Justice Earl Warren: Yes.

Mr. Fred D. Gray: I understand there has been a curtailment in police patrol of the areas.

For example, as we allege --

Chief Justice Earl Warren: But do they patrol at all the City of Tuskegee, do they patrol the -- the District that's been cut off from?

Mr. Fred D. Gray: Some of the areas, yes, sir, because they are still within the -- some of the areas are still within the police jurisdiction of the city.

Chief Justice Earl Warren: Of the State?

Mr. Fred D. Gray: Of the city.

In addition to the city limits, then the city still controls to some degree the -- the police jurisdiction which prior to the enactment of this law extended for some three miles beyond the actual city limits but those persons in the police jurisdiction are not illegible to vote in municipal elections.

Justice Felix Frankfurter: So that must have been that the police authority extended beyond the old limits of the City of Tuskegee, must have been through some other Alabama Legislation.

Mr. Fred D. Gray: Yes, sir, that's correct.

Justice Hugo L. Black: That's general true to the State, doesn't it?

Mr. Fred D. Gray: Yes, sir.

Justice Charles E. Whittaker: Now, does that jurisdiction as I understand it (Inaudible)

Mr. Fred D. Gray: Well, there is a substantial question with reference to that because our state statute states that a city whose population is 6000 and over, the -- the boundary is extent to three miles.

If it's less than 6000, then it should extend from mile and a half.

And by the substantial reduction in -- in area, as we understand it, it would mean that the present city in Tuskegee is less than 6000 so the -- the police jurisdiction would only be a mile and a half.

And it would in some instances, in other instances, it would not.

Justice Felix Frankfurter: Well, even its three miles since there's a -- there's a contraction, the three miles wouldn't radiate so far as it did previously.

Mr. Fred D. Gray: No, sir, it did not.

Justice Charles E. Whittaker: Well, why does not requires (Inaudible) tell me would it go for a mile and a half to go as far as the extreme southwest corner shown on that map right there?

Mr. Fred D. Gray: No, sir.

A mile and half from this point to here is farther than mile and a half.

Chief Justice Earl Warren: Is what?

Mr. Fred D. Gray: It is farther.

I'm saying from this point, the end of the city limit is here to the other areas of old city, in my opinion, if it's farther than a mile and a half.

Justice Felix Frankfurter: Well, indicate where a mile and a half is on your map from that point.

From (Voice Overlap) --

Mr. Fred D. Gray: I have to --

Justice Felix Frankfurter: No, from where you first started with your point, from there, that's right.

I indicate on that map how far a mile and a half to take one.

Mr. Fred D. Gray: It would be difficult without construing to the scale on the map, Your Honor.

I (Voice Overlap) --

Chief Justice Earl Warren: Well, what is this scale?

Mr. Fred D. Gray: The scale is 800 feet 2 inches, I think.

Chief Justice Earl Warren: 800 what?

Mr. Fred D. Gray: 800 feet 2 inches.

Justice Felix Frankfurter: 2 inches and 800 feet.

Chief Justice Earl Warren: 400-- 400 feet to the inch then, is that right?

Mr. Fred D. Gray: That's right.

Chief Justice Earl Warren: 20 inches then would be my own (Inaudible), yes about 8000.

Mr. Fred D. Gray: Well, it has appeared from this point to the end, same would be followed (Inaudible).

We submit that the complaint further alleges that the purpose and the effect of this Act is to deny Negroes the right to vote solely because of their race and color that the Act deprives -- deprived petitioners of the right to participate in other activities as residence in the City of Tuskegee solely because of their race and color in violation of the Fourteen Amendment of the United State Constitution and the Fifteen Amendment.

Mr. Carter will, at this time, argue the law in the case.

Chief Justice Earl Warren: Mr. Carter.

Argument of Robert L. Carter

Mr. Robert L. Carter: Our position in this case is quite simple.

We take the position that that this is purely a case of racial discrimination, solely and simply racial discrimination that the natural result of the passage of Act 140 was to put out of the city limit that -- indicated in this map, all the areas of concentrated Negro residents without affecting any white persons and without affecting any of these white qualified voters.

Now, the -- as you can see on -- on here, that what the map does, what the -- what the new -- the change is due is to weave in and -- in and around the Negro residents in order to exclude as many of them as possibly can.

Now, as Mr. Gray has pointed out, there has been no statement in the -- the purpose of the legislation other than the fact that we alleged in our complaint that the purpose of this legislation was discriminatory.

Now, it's our position that as a result of the enactment of Act 140 that the petitioners and other Negroes similarly situated have been deprived the personal and private constitutional rights protected under the Fourteenth and Fifteenth Amendments to the Constitution of the United States that they have been -- did -- did not -- denied the right of municipal residence in the city and the benefits which are incident thereto and that they have to deny the right to vote in the municipal elections and we contend that they are to deny these rights solely because they are Negroes and for no other reason.

Now, as the city has been redrawn, Tuskegee has become virtually a white city with Negroes denied the right to vote in the city and the right to live in the city.

Now, we take the position, if the Court please, that it is quite obvious that Alabama could not pass the statute which would openly disenfranchise Negroes which would open the set of test for their right to vote in any election in any territory unit which was different from those applying to other persons.

And if such a law were before the Court, there would be no question but that, this would be constitutionally impermissible.

And that if such a claim were made that this would be cognizable in the federal court and that there would be -- redress would be available.

We also contend that if Alabama had passed the statute, which denied Negroes the right to live in Tuskegee or to any of the benefits which accrue to the citizens of Tuskegee, that this would be a denial of Fourteenth Amendment rights and that there would be no question that this kind of claim would have -- would be available for redress in the federal court.

We further would like to point out to the Court on the basis of its decision that it would not matter whether this was done openly or covertly.

The fact that it was done and this was the result, there would be a claim of constitutional deprivation which would be actionable before the federal judiciary.

Now, our contention is that this is our case, that our case is -- is the same case as the cases which apply to the -- these kinds of discrimination -- discriminations and disenfranchising.

We feel that this passage of Act 140 is -- has brought the case of racial discrimination as any case that has come before this Court between Yick Wo versus Hopkins and Cooper versus Aaron.

We also contend that the -- the -- our allegations, the allegations of undisputed -- which are undisputed at this stage of the proceeding which the Court cited in its memorandum opinion in the District Court, that these allegations of rank discrimination cannot be cast aside or discounted by placing labels upon them.

The labeling action one way or the other is -- so far as the state -- problem is concerned.

We think that the fact that the -- that the defendants rely upon the cases like Mount Pleasant versus Beckwith, which involves the plenary power of a -- of a State to redefine its borders or Colegrove -- Colegrove versus Green are not cases which apply to this -- to this situation.

We think that we -- that our situation is -- is based upon federal constitutional doctrine that the State cannot discriminate against persons because of race or color.

They can't discriminate against them in terms of the -- of the benefits that are -- are applicable in terms of residence.

They can't discriminate against them in terms of their right to participate in elections.

And that where such claims are made that we have a -- a prima facie case which the federal courts can hear.

Now --

Justice Felix Frankfurter: (Inaudible) of prima facie case (Inaudible) isn't that it?

Mr. Robert L. Carter: That's right.

And our problem is that in -- in the kinds of case that we have alleged, that it is the kind of case in which normally, we have been permitted in the -- and of the history of the -- of the kinds of racial discrimination cases which occur that there's been no question but this type of case is -- can go to court and that we have a right to a hearing on the merits.

Now, this -- we -- we think is -- is our position.

And that we don't believe that we need to involve ourselves of -- in any argument as to whether Alabama has the right to redraw its boundary lines or whether we -- we, petitioners, have any vested right to participate in the electoral process of any territory unit of Alabama or whether the petitioners have any vested rights to live in any territory unit.

We do -- we contend that Alabama may redraft its territorial limits but it cannot do it in order to accomplish a racially proscribed discrimination under the Constitution of the United States.

And that the petitioners do have a vested right to reside in any territorial limit -- unit in -- in Alabama and to participate in the election process that they have a vested right not to be deprived of the right to live in that unit or to participate in it because they are Negroes.

This we think is the contentions and -- the contentions which we make here and this is the kind of case which we think this presents.

Now --

Justice Potter Stewart: The -- Mr. Carter, becoming nonresidents of the Municipality of Tuskegee did not, in anyway, impair the right of the 400 former voters in Tuskegee to vote in all other state and county elections.

Mr. Robert L. Carter: There is absolutely --

Justice Potter Stewart: You did not impair.

Mr. Robert L. Carter: No, sir.

They -- they have the right to participate in all other elections other than elections that are involved only to limit --

Justice Potter Stewart: In the municipality.

Mr. Robert L. Carter: -- Tuskegee.

Yes, sir.

Justice Potter Stewart: And the -- the registrars are county officials, are they not?

So that --

Mr. Robert L. Carter: Yes, sir.

Justice Potter Stewart: -- so that living in Tuskegee doesn't give you, as a practical matter, more of a chance to become eligible to vote.

You don't go before different registrars wherein they would --

Mr. Robert L. Carter: Same registration board that the Macon County met registration board which was -- which had been made a part of the -- the report of the United States Commission on civil rights.

It's the same board that registers people in Tuskegee (Voice Overlap) --

Justice Potter Stewart: Both residents and nonresidents of the city.

Mr. Robert L. Carter: This is -- this -- it makes no difference in this regard.

Our -- our contention is that because these persons who were Negroes are not permitted to vote in the municipal elections, that they have been deprived because of color of a right of value and because they are Negroes, because they can no longer live in the City of Tuskegee that they have been denied rights protected under the Constitution of the United States.

We don't contend that -- that they have been, in any way, placed in any different position in other respects.

But in our judgment, this is a -- a serious constitutional claim which -- which we think, in other circumstances, we are entitled to hear as to have a hearing if approved and if we can prove our case, we think we're entitled to the relief which has been asked by the court below.

Chief Justice Earl Warren: Mr. Carter, what -- what is the procedure in your State for changing the boundaries of the city?

How -- how was this accomplished?

Mr. Robert L. Carter: This was accomplished by a -- an Act.

This is called the Private Bill which was sponsored by the Senate of -- from this county.

Now, this was submitted by -- to the Legislature as the bill of Senator (Inaudible) which was the first in our petition in our brief.

This bill was passed by the State Legislature, a statute affecting only the contours of Tuskegee.

Now, this is the way which it -- it's -- this is the way which it is done as far as I had been able to gather.

Chief Justice Earl Warren: Is that the normal way that the boundaries of the city are changed in your State?

Mr. Robert L. Carter: Well, this is the normal way that I understand it has changed.

There might be a petition on the residents to the Legislature to change the boundaries but in -- in most regard, there was nothing unusual as far as I have been able to gather about the fact that this bill was passed.

Chief Justice Earl Warren: In other words in your State, the Legislature --

Mr. Robert L. Carter: Yes.

Chief Justice Earl Warren: -- pictures the boundary lines of all cities and the -- and the voters have nothing to do with determining what the limits of the city will be.

Mr. Robert L. Carter: This is my -- that's my understanding, exactly, yes.

Chief Justice Earl Warren: Yes.

Mr. Robert L. Carter: I -- I have been advised by -- by Mr. Gray that there is a procedure in which they can do it too.

Mr. Justice Black --

Justice Felix Frankfurter: What procedure?

Mr. Robert L. Carter: That there is a procedure but whereby the voters may participate.

Justice Felix Frankfurter: And initiate it.

Mr. Robert L. Carter: Yes, initiated by some kind of -- by a referendum.

But the --

Justice Potter Stewart: But in any event, there's no issue as to the fact that based on Alabama law, the -- this -- this Act was perfectly proper and valid.

Mr. Robert L. Carter: Based upon Alabama law in terms of --

Justice Potter Stewart: In terms of the power of legislature (Inaudible).

Mr. Robert L. Carter: -- in -- in terms of procedural requirements to make --

Justice Potter Stewart: (Voice Overlap) --

Mr. Robert L. Carter: -- the Act valid.

We raise no issue about --

Justice Potter Stewart: I see.

Mr. Robert L. Carter: -- that at all.

Our issue is that we raise and that it is invalid under the Constitution as a substantive of merit.

Now --

Justice Hugo L. Black: (Inaudible)

Mr. Robert L. Carter: Beg your pardon.

Justice Hugo L. Black: How does it effect?

Mr. Robert L. Carter: Because of its effect, because the result of the statute is, as we have indicated and that -- as we indicate that the statute -- we don't -- we -- Mr. Justice Black, we don't even believe that we have to, at this time, go into purpose in terms of the fact that the result of this -- this warrant as we have shown is to accomplish what we've alleged has been accomplished and that is to put Negroes outside the limits and all the electors and place white people in, indolence so that the -- the purpose and effect of the statute as far as we are concerned is -- is this and for that reason, we take that the statute is unconstitutional.

Justice Hugo L. Black: What is proof (Inaudible)

Mr. Robert L. Carter: Well, the proof that we would offer would be to show that we have the city, which has never (Inaudible)

Justice Felix Frankfurter: I'm sorry, Mr. Carter, I don't hear you.

Mr. Robert L. Carter: I'm sorry.

Justice Felix Frankfurter: Suppose you begin the proof, you would offer.

Mr. Robert L. Carter: The proof we would offer is that this territory which has four sides but now, the recast is this -- what I consider an extraordinary discernible.

Justice Potter Stewart: District Court called it a sea dragon, I think.

Mr. Robert L. Carter: Yes, sea dragon.

That -- as a result of this, that all Negroes have been cast outside of the city, some close to 5000 Negroes and 1000 white persons being left here.

Justice William O. Douglas: Would it be opened to the city to call the trial, the Court back for trial to --

Mr. Robert L. Carter: Beg your pardon.

Justice William O. Douglas: -- would it be open to the city under your theory to show that there was another reason for it?

Mr. Robert L. Carter: Oh, yes, we would think that there would because we would be at a point of proof.

We would have to prove our case.

Justice William O. Douglas: So purpose becomes the central aim of the -- of the litigation of the said court, controversial --

Mr. Robert L. Carter: Well, purpose and effect because insofar as -- we -- we think that we can show that the line was drawn -- where a line drawn to a two or three places as the white people on one side and Negroes on the other side of the line.

And that here in other places where the line comes weaved around it, it weaved in around the Negro neighborhood.

Now, we believe that if we can demonstrate that as a result of this, that all of the Negroes are placed out of the line comes that we are in a good position to show discrimination as we would be able to show in a jury explanation cases and this would be the kind of proof that we have.

Chief Justice Earl Warren: We'll recess now.

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Argument of Robert L. Carter

Chief Justice Earl Warren: C. G. Gomillion et al., Petitioners, versus Phil M. Lightfoot, as Mayor of the City of Tuskegee.

Mr. Carter, you may continue your argument.

Mr. Robert L. Carter: If I may recapitulate briefly from where we were when the argument broke off yesterday.

It's our contention that Act 140, the statute herein question by redefining the boundaries of Tuskegee in the bizarre fashion indicated from the back from -- in the chart on the back that has -- has accomplished a purposeful and intentional discrimination against Negroes as a class.

The Act has cast outside of the city, all of the qualified Negro voters with -- with the exception of four or five and has reduced Tuskegee from a city of approximately 7000 persons of whom about five -- in excess of 5000 more Negroes and 1300 white to a population of approximately 1310 white persons and at best, a few hundred Negroes.

The Negroes, who are left in the city, are left in the city only because of the fact that they could not have been cast out of the city without affecting white persons.

Now, it's our contention that this is a purposeful and intentional discrimination and that this case is governed by the discrimination cases and that the rule of law applicable to -- to them controls here that the allegations which we have made -- make out of case which is justiciable and actionable in the court and that we are entitled to a hearing in the court below.

Now, we --

Justice Felix Frankfurter: You didn't get -- you didn't have, Mr. Gray, you didn't have the exact number of Negroes that were left in the redistricting.

Mr. Robert L. Carter: No, no --

Justice Felix Frankfurter: Because there are a few hundreds, does that mean 200 or 800?

Mr. Robert L. Carter: We don't know, if the Court please.

We know that they -- and we alleged in our complaint that only four or five qualified electors or qualified voters were left.

But we do not, as Mr. Gray indicated yesterday, have the exact census figures to be able to tell the Court with exactitude how many Negroes were left in the city.

Justice Felix Frankfurter: Are they clustered in some particular place on that map?

Mr. Robert L. Carter: They are not clustered on the map.

They are -- they live in -- in some parts of this various area here.

Now, our contention is --

Justice Felix Frankfurter: What is that area?

Is that a -- what kind of an area is that?

Mr. Robert L. Carter: Well, what I --

Justice Felix Frankfurter: It seems to be grossly settled.

Mr. Robert L. Carter: -- what I mean is that some of them are living on this side of the (Inaudible) and they live with -- within the confines of this.

Justice Felix Frankfurter: Not in the center of the city, Mr. Carter?

Mr. Robert L. Carter: Not in the center of the city.

Justice Felix Frankfurter: Yes.

Justice Hugo L. Black: Suppose they had reduced it on a half that much, would you see any difference?

Mr. Robert L. Carter: Reduced it only half --

Justice Hugo L. Black: Reduced the size of the city on a half that much.

Mr. Robert L. Carter: That it has done now and therefore left more Negroes in -- inside --inside than are now?

Justice Hugo L. Black: Yes.

Mr. Robert L. Carter: Is that question?

Well, I think, if the Court please, I think I would have a more difficult question in terms of showing that there was discrimination.

Justice Hugo L. Black: You mean proof that they --

Mr. Robert L. Carter: Proof, proof.

Justice Hugo L. Black: -- of the purpose.

Mr. Robert L. Carter: That's right sir.

Justice Hugo L. Black: So, you finally get back to proof of the purpose?

Mr. Robert L. Carter: Proof of the purpose.

But I also have, if the Court please, the -- the natural consequences that we think we can show the fact that this cannot be disputed but the facts of the matter are that all of these Negro neighborhoods had been cast out of the city.

This is --

Justice Hugo L. Black: Suppose -- suppose, they would split up, would decide to split up a county whether that way.

Would you say it is dividing up the county in two parts, if it could be shown they did it because they wanted to get the colored people in one county and the white people on another that that would violate the Constitution?

Mr. Robert L. Carter: Yes sir, I do.

Justice Hugo L. Black: You would.

Mr. Robert L. Carter: I do.

I think that that would violate the Constitution because I think that the boundary line would be -- would be drawn on the basis of race and I think that this is violative of the constitutional -- of prosecution.

Justice Hugo L. Black: The only you should get to that, of course, would be to show that was the purpose.

Mr. Robert L. Carter: Well, the only way I would get to that would be to show that that was the purpose but I can also get to it to show that that was the effect.

Justice Hugo L. Black: Well, suppose that is the effect to the State, divides up two counties.

One county and then two or three, and that the effect of it is to live predominant, live one of the counties predominant to white, the other predominant to colors.

Mr. Robert L. Carter: I think that if -- if I can show that in terms of the facts that I would be able to show discrimination because I believe that -- that if the -- if the effect, if the question of proof is the effect, this is an incidental effect, this is something else.

But in this, where this question we have before the Court, with the way these lines are growing as they live in and out of the -- in and out of the city then the natural effect, this cannot be an incident of where there's occurring, this is -- this has to be the natural consequences of the Act.

Justice Hugo L. Black: What your -- what argument gets down to is this, isn't it?

That whether it is shown by the facts of the way that counties divided a city is to the -- that it leaves one part of it predominant to white which had been predominant to color.

That is enough to deprive the State, invalid to create -- to the take that part of land out of the municipality.

Mr. Robert L. Carter: Well, that is enough, I think, for us to go to court that --

Justice Hugo L. Black: That the State doesn't have a right to adopt that policy.

Mr. Robert L. Carter: That's right.

Justice Hugo L. Black: It gets down to a purpose of the policy.

What do you do with Colegrove and Green on that?

Mr. Robert L. Carter: Well, we don't believe, if the Court please, we don't think that the Colegrove doctrine has anything to do with this problem because --

Justice Hugo L. Black: Did you ask us to overrule Colegrove and Green?

Mr. Robert L. Carter: We do not.

We --

Justice Hugo L. Black: You asked us not to reconsider it?

Mr. Robert L. Carter: We -- we think that this has no --

Justice Hugo L. Black: Suppose one -- suppose one was at the opinion, it should have to reconsider it.

Mr. Robert L. Carter: Well, if --

Justice Hugo L. Black: Are you asking that that be done?

Mr. Robert L. Carter: If -- if the only way we can reach -- if the only -- if the Court concludes that the only way they can reach our problem is to overrule Colegrove versus Green, we would have to take that position.

But we do not believe that we are -- but that -- at the present time that we are in that position to --

Justice Hugo L. Black: In other words, you're not asking us to.

Am I to understand that you're not asking us to?

Mr. Robert L. Carter: That's right, sir.

We're not asking to -- to overrule Colegrove versus Green.

Our contention is that this is not a reapportionment case and that the Colegrove doctrine has nothing to do with the problems which are raised here.

We take the position that this is purely a race discrimination case and that it is not involved in the Colegrove versus Green problem at all.

Justice Felix Frankfurter: Mr. Carter, suppose I go on with Justice Black's hypothetical case, an existing county happens to natural coagulation, to a natural aggregation to have predominantly in one half of it white, said reduced and then in the other half, colored city and the State then splits it into half but each half continues to have voting right.

Nothing is done to -- to takeaway the -- either directly or to any manipulating of the electoral machinery, to potentiality or the opportunity for the exercise of the franchise.

What will you do with that case?

Mr. Robert L. Carter: Well, as I said to Mr. Justice Black, I don't believe that the State can adopt to policy of -- which would have -- would amount to divide the county or any territorial unit in order to generalize it in terms of white and Negro.

I think that this is forbidden by the county --

Justice Felix Frankfurter: Forbidden by what, the Equal Protection Clause?

Mr. Robert L. Carter: Forbidden -- I think this is forbidden by the Equal Protection Clause.

In your instance, it would be -- it seem to me would be forbidden by the Equal Protection Clause.

I wouldn't have the Fifteenth Amendment but I think it would be forbidden by the Equal Protection Clause --

Justice Felix Frankfurter: I suppose you have a county that divides in the same way not according to racial line but according to economic preoccupations or interests.

Half of it happens to be industrial and the other half is agricultural and the same division has been made.

What do you do with that?

Mr. Robert L. Carter: Well, that -- that is -- is a more difficult question but the problem I have -- I would think that that -- that that case in that particular kind of case that I would be -- that you would be able to show that this was a denial of Equal Protection.

But at the same time, it seems to me, if the Court please, there would -- there might be differences in terms of this, in terms of whether this is an equal protection argument.

I don't believe that we have that problem when -- when race is involved because of the Fourteenth Amendment and because of its clear provisions in respect to what this Court has had.

So that where race is involved, our contention is in this, the race discrimination case, we have a clear protection under the Fourteenth Amendment which would forbid the State from doing exactly what -- what you suggest is my opinion.

Justice Felix Frankfurter: But here, you -- you argue yesterday that you haven't got a kind of admixture here because the redistricting throws out practically every, theretofore, qualified Negro voters.

Mr. Robert L. Carter: Yes, sir.

Yes, sir.

Justice Felix Frankfurter: You said yesterday, how many were left?

Mr. Robert L. Carter: About -- we -- we say in our brief, we -- we -- approximately three or four.

Justice Felix Frankfurter: Does three or four and all of the 400 that are -- if all of them with -- with negligibly exceptions were recalled out?

Mr. Robert L. Carter: Yes, sir.

Yes, sir.

So that in this case, we --

Justice Hugo L. Black: Well, you said it throws them out of the right to vote?

Mr. Robert L. Carter: It throws them out of the right to vote in -- in the municipality --

Justice Felix Frankfurter: In the area that they have -- that has been changed.

Mr. Robert L. Carter: That is right.

Justice Hugo L. Black: What's the consequences that the Chief Justice indicated yesterday in his first (Inaudible) but they haven't got fire protection if they haven't got -- they've got a shrinking of police protection if any and all the other amenities of a municipal life.

Mr. Robert L. Carter: That's right plus the fact that they -- they do not have the right to participate in the rules -- in making the rules, regulations which would govern them in terms to the kinds of protection that they would have.

Justice Hugo L. Black: Well, they have a county governor, is it not?

Mr. Robert L. Carter: Yes, sir.

They have a -- they have a county governor.

Justice Hugo L. Black: Your position I think it's better to place it squarely on the fact as they actually are, from (Inaudible)

Your position seems to me that the unit, when a State decide in the exercise of its policy or polity, if you wish to call it polity, at least the Government (Inaudible)

If you wish to call it policy or policies, has the policy wants to change a municipality, make it smaller, cut off the lives part of it, that it does not take away the life of the people that have taken out of that municipality to vote.

They are left with the -- such right to vote as those in the county outside of the municipality here.

I presumed what you have to mean is in this.

Although the State has arrived to change the area, about the city, that have to look at its purpose that you are arguing, to see and to define that the perpetua to put colored people out of that area so that they could not vote in that area although they could vote outside of that area, that that violates the equal protection in our view, whichever authorities it does.

I agree, that's the real fact, isn't it?

Mr. Robert L. Carter: I agree with that, yes sir and this is --

Justice Felix Frankfurter: Have you -- have you got a heavier burden, have you got a heavier burden in this case than the offer of truth that your allegations (Inaudible) under the facts of this particular case without making the generalization in a figure, namely that there were 400 qualified Negro voters and a redistricting took all the 400 out with reference to the enjoyment they, theretofore, had in the City of Tuskegee.

Have you got a greater burden in that, in this case?

Mr. Robert L. Carter: I -- we don't -- we don't think so and this is the --

Justice Hugo L. Black: Well, what difference does it make if they have unconstitutionally deprived these people with the right to vote whether it was 400, 3000 or six.

If the purpose is to do this and the purpose can validates it as a discrimination, why are not six entitled to protection the same as 425 or --

Mr. Robert L. Carter: Well --

Justice Hugo L. Black: -- 3000?

Mr. Robert L. Carter: I think that the 400 --

Justice Hugo L. Black: Now, then we've held that with reference to one man who's deprived, that was jury found.

Mr. Robert L. Carter: Yes sir, but I think that the -- in terms of this case if Your Honor pleases.

The fact that 400, that 397 or 396 of 400 were cast out, it seems to -- it seems to me to -- to lessen the burden that we have in terms of --

Justice Hugo L. Black: Of showing the purpose.

Mr. Robert L. Carter: That's right.

Justice Hugo L. Black: You -- you using it as an evidence --

Mr. Robert L. Carter: Yes, sir, that's right.

Justice Hugo L. Black: -- to show the purpose.

You finally get back to whether or not it violates the Constitution for a State to reduce the area of a city for the purpose of taking colored voters out of that city, throwing them out into the county where they have their own -- the rights to vote there or the right to vote with other things in the county with this.

That's where you finally get through --

Mr. Robert L. Carter: Yes, sir.

Justice Hugo L. Black: -- with that regard to the number, isn't it?

Mr. Robert L. Carter: That's right.

Justice Hugo L. Black: What you're talking about, narrowly is, the use of a number for the proof.

Mr. Robert L. Carter: That's right.

Justice Hugo L. Black: That if it's provable, I believe I can understand your argument.

Mr. Robert L. Carter: That's right.

Justice Felix Frankfurter: Well of course, if there's an unconstitutional deprivation, there's an unconstitutional deprivation, but the fact may determine that there isn't an unconstitutional deprivation.

Mr. Robert L. Carter: And this is -- well, this is why in our judgment since we had 396 persons that we feel that we have no problem of -- of showing that this -- this Act that we get to deprive or unable to go to prove, we think that we had no -- no problem of showing that this Act is unconstitutional because we feel that we have overwhelming evidence to demonstrate that --

Justice Felix Frankfurter: You thought the State here that the -- the mitigation derived from the fact the State doesn't affect everything you say so, the external fact, I mean disability, and there is no explanation for this other than the fact that having done it, isn't that right?

Mr. Robert L. Carter: That's right.

Justice Felix Frankfurter: In fact, in the old fashion language, they demurrer for the facts.

Mr. Robert L. Carter: That's right.

Justice Felix Frankfurter: So we have here a clear case of the demurrer for the facts which you're ready to prove, so you don't have to prove it.

Mr. Robert L. Carter: That's right.

Chief Justice Earl Warren: Mr. Carter, suppose there were -- there were no voters at all registered in the old city, that is no Negro voters, and they had accomplished this same result.

Would you be in any different positions?

Mr. Robert L. Carter: Well, I couldn't -- at that point, what we would have to -- to show -- well, I think that we would have a Fifteenth Amendment argument because they would not be entitled with the vote in the -- in the old city and we would have an equal protection and due process argument as well in this Fourteenth Amendment because the line was drawn as we suggest on the basis of race.

I don't think that would change our position.

It would, as Mr. Justice Black suggests, change the nature of the evidence that we would have to -- to bring on to prove that this was the intent of the Act.

Justice Hugo L. Black: It gets -- your case gets down, doesn't not, to where you've got to look at the area, that evidence he (Inaudible) judgment views to show the purpose to legislation in passing this particular law.

Mr. Robert L. Carter: Yes, sir.

Now --

Justice William J. Brennan: But may I ask Mr. Carter, that any colored residence in the city has now to mind who are not voters?

Mr. Robert L. Carter: Well, I'm sure -- we're sure that there are as I -- the terms that indicate a little earlier.

We really -- we don't know.

We attempted to get the exact figures as to how many Negroes were in the city at the present time but census figures are not available and will not be available until December.

We have alleged in our complaint and this has been -- has been taken as truth and only three or four qualified voters are left in the city.

Now, --

Justice William J. Brennan: But there maybe number perhaps --

Mr. Robert L. Carter: There maybe.

Justice William J. Brennan: -- about Negroes residing in the city who are not voters.

Mr. Robert L. Carter: That's right sir.

Who -- who were not able to be cast out by the -- by -- in terms of these lines without taking quite persons outside too.

This is our contention that the only Negroes left in were those who left in, that the State could not put up without affecting white persons as well.

Justice Potter Stewart: Conversely Mr. Carter, are there any white people who are now resident of the county because of this reduction in the area of the municipality who used to be residents in the city but were not voters?

Mr. Robert L. Carter: No, sir.

No white person who lived in the city has been in any way voter or not voter affected by this -- this change environment.

Justice Potter Stewart: I have this thought in mind, the city as it used to be before the enactment of this one party, the statute was what, five, six Negro, was it not, something like that?

Mr. Robert L. Carter: About five, yeah, five to -- about five to one.

Justice Potter Stewart: Five to one.

Mr. Robert L. Carter: Yes, sir.

Justice Potter Stewart: So that any reduction in size of the city, presumably on the -- on averages which would put five Negroes into the outside of the city to everyone, white person, that is any -- just that passer reduction in the size of the city?

Mr. Robert L. Carter: Well, I'm not sure of that Justice Stewart because as you note where the Negroes live or where the -- as the city is withdrawn.

The residents of white persons are those that are around the center, clustered around the center of the city.

The Negro neighborhoods are on the periphery -- on the periphery of the city so that the reduction in this way, as they had done it this way, does not necessarily follow that there's going to be a five (Voice Overlap) --

Justice Potter Stewart: It doesn't necessarily follow it, because just perhaps statistically it's not too big example or something --

Mr. Robert L. Carter: Yes, sir.

Justice Potter Stewart: There's no other reason.

But if you simply reduced the size of the rectangle let me say --

Mr. Robert L. Carter: Yes, sir.

Justice Potter Stewart: And instead of creating a sea dragon, you made a smaller rectangle.

Mr. Robert L. Carter: Yes.

Justice Potter Stewart: I gather that it -- at least the ratio of five to one, people who are then in a county would prevail.

And as I say at least because you just told us that there are more Negroes on the periphery in the rectangle -- of the old rectangle.

Mr. Robert L. Carter: Now, that this would-- in that kind of case but this of course is not our case because you -- in that kind of case, you would have a reduction of white instead of Negroes with the case that you suggest.

In our case, we have a reduction only of Negroes and not reduction in terms of the population parties.

Justice Potter Stewart: Not at all of any --

Mr. Robert L. Carter: No sir.

Justice Potter Stewart: -- white people, whether or not they are voters.

Mr. Robert L. Carter: No sir.

Justice William J. Brennan: Well, if that's true then I think that the ratio of five to one doesn't -- no longer obtains within the city that was withdrawn (Voice Overlap) --

Mr. Robert L. Carter: Oh, that's true.

That's true.

The city that -- the city as has been withdraw -- withdrawn as we've attempted to indicate yesterday is virtually a white city, it is overwhelmingly white with -- we think no more than about 200 Negroes.

Justice William J. Brennan: Oh no more than about 200.

Mr. Robert L. Carter: Yes.

We -- we thought that this is a guest because we don't know.

Justice William J. Brennan: Well, that so than five to one ratio is just a reverse, doesn't it?

Mr. Robert L. Carter: That's right.

Now if I may close, I wanted to indicate to the Court our position that this is -- this being as we contend a -- a race discrimination case.

That we think that there are no problems of the least involved here that this is not the kind of case in which there would be any question of un -- any unusual problems in terms of relief as we request.

We request that the declaratory judgment which were in that matter which would hold that this -- that this statute violates the Equal Protection and Due Process Clause with the Fourteenth Amendment and the proscriptions of the Fifteenth Amendment as well.

We also request an injunction to enjoin the enforcement of the statute and an injunction to restrain state officials from keeping the -- the petitioners and other Negroes from voting in the municipal elections in Tuskegee.

As far as we are concerned, we think that is the same kind of relief which this Court has normally granted in cases of this kind and that therefore it offers no peculiar difficult problems of equitable relief.

For this reason, if the Court please, we think that we have presented a case which comes within the race discrimination cases and that we have presented a case which requires under the rules and the doctrine of about -- of constitutional doctrine which has been announced by this Court that the State cannot discriminate against persons because of their because of their race and color.

Justice William J. Brennan: Well Mr. Carter, if you had a declaratory judgment that one quoted, it's constitutionally invalid of the federal constitution, do you need all the terms that (Inaudible), do you need restraints of any kind?

If that was so, would that -- just not destroy the reorganizations?

Mr. Robert L. Carter: Well it would destroy --

Justice William J. Brennan: Destroy the --

Mr. Robert L. Carter: It would destroy and the city would revert.

It would revert to where it was.

Justice William J. Brennan: Well then you need the term relief, that's what I'm asking.

Mr. Robert L. Carter: Well, we may not need this -- the kind of -- the kind of relief but we want -- we're asking for to make sure that there would be no difficulty in terms of -- of the petitioner's participating in the electoral process.

Chief Justice Earl Warren: Mr. Elman.

Argument of Philip Elman

Mr. Philip Elman: Mr. Chief Justice, may it please the Court.

Because of the fundamental constitutional rights which are here asserted in the national significance of the issues, United States is appearing in this case as amicus curiae and supported the petitioners.

Before proceeding with the argument, I should like if I may by way of response to question from the bench yesterday to state that according to an official report of the United States Bureau of the census in January 1953.

The area of the City of Tuskegee as it existed in 1950 and prior to the alteration of the boundaries made by the 1957 law.

The area of the city then was 6.3 square miles.

In other words, roughly about 2.5 miles square, each of the lines on the trip reading about 2.5 miles.

Now, it's perfectly obvious looking at the face of the map considering just this 2.5 mile.

That from any point of the new city to any boundary of the old city is less than 1.5 miles which as was stated yesterday has some significance under Alabama law, Title 37 Section 9 of the Alabama Code of 1958 provides that the police jurisdiction of every municipality having a population of less than 6000 which is now the case as to new Tuskegee.

The police jurisdiction extends beyond its corporate limits for 1 and 1.5 miles, is another provision of -- of Title 37 Section 491 which puts upon the -- which gives the municipality the power of maintaining health and cleanliness within its police jurisdiction.

So that the inhabitants of this area outside new Tuskegee, inside old Tuskegee now receive to an extent not shown by this record but -- which has been illuminated by counsel.

By now receiving municipal services of a sort from the city, the point is of course that while they receive these services to some degree and extent not shown.

They are no longer in the position that they were before Act 140 of being able to assert through the exercise the franchise and through the exercise of less formal ways --

Justice Hugo L. Black: Is that --

Mr. Philip Elman: -- of their rights.

Justice Hugo L. Black: Is that a general factor?

Mr. Philip Elman: Yes, sir.

That's Title 37.

Justice Hugo L. Black: How long (Voice Overlap) statute.

I thought it's been in effect (Voice Overlap) --

Mr. Philip Elman: I believe it's been in effect for -- considerable period of time.

I founded in the 1958 revision.

Justice Hugo L. Black: I remember (Voice Overlap) many years ago (Inaudible)

Mr. Philip Elman: Title 9 -- Title 37 Section 9 according to the -- I'm afraid that unlike the U.S. Code annotated, this does not show the historical deprecation, so I cannot answer it.

Chief Justice Earl Warren: Mr. Elman may I ask, does the city have responsibility for those services as well as jurisdiction to render them if it desires to do so --

Mr. Philip Elman: Well --

Chief Justice Earl Warren: -- outside of the city?

Mr. Philip Elman: -- I'm not sure that I'm qualified to answer that question Mr. Chief Justice.So far as statute show, the -- the police jurisdiction extends to this area.

Now, the extent to which that imposes affirmative responsibilities upon the municipality, I cannot ascertain from the statutes.

Justice Hugo L. Black: I have an idea although it maybe wrong until they could tell us.

Mr. Philip Elman: Yes, Your Honor.

Justice Hugo L. Black: Would that (Inaudible) grab that and make arrest for offensive committed in the city?

Mr. Philip Elman: Yes, sir.

Justice Hugo L. Black: It may mean much more.

Mr. Philip Elman: Well so far as the allegations of the complaint, our -- our concern to the extent they shed line on this and they must be taken as true.

The allegation is that the petitioners no longer receive the police patrols at -- at school crossings.

They use to have that, they don't have that now.

Now, as residence of the city, of course they would be in a position to complain about that as constituents of a city counsel and there are electors in there and so on.

That right they no longer have and that of course is in a context to this case an important consideration.

Chief Justice Earl Warren: Can the city levy any tax on those people out there for services?

Mr. Philip Elman: Again, so far as the statute show if there are street construction -- new -- new construction, new road and so on, I think that there is a power to make assessments but so far as ad valorem --

Justice Hugo L. Black: (Voice Overlap) is part of the city?

Mr. Philip Elman: If -- if I -- if I speak --

Justice Hugo L. Black: Just one --

Mr. Philip Elman: -- if I speak erroneously here sir --

Justice Hugo L. Black: I don't know why.

Mr. Philip Elman: It is only because of as a non-Alabama lawyer, I'm not sufficient -- I'm not sufficiently at home with the statute, but I -- I've made an effort to look through the code on this.

There is a provision that where there is new -- new streets are laid, they can -- there's power to asses within the police jurisdiction.

But I'm -- I'm sure that --

Justice Hugo L. Black: Did you elect there were --

Mr. Philip Elman: -- counsel for the -- for the respondents, are in far better position to respond than I am.

But I -- I should like if I may to go to the heart of the case as -- as we think the questions of Mr. Justice Black and Mr. Justice Frankfurter have exposed it.

The complaint in this case was dismissed for lack of jurisdiction and for failure to state a claim upon which relief can be granted.

The Court of Appeals affirmed, Your Honors I do not have before you proof, you do not -- you're not called upon to decide what the relief should be if that proof should be accepted in the judgment of violation of constitutional rights may.

The only question, which has been considered -- below, only question, which is here is the question stated by Judge Brown.

Whether the federal courts are open to hear and determine the serious charges that are made by this complaint, the charge that this Act of the State Legislature, although cast in neutral surveyors terms and terms of metes and bounds that the line which this statute draws is a line based upon race or color and that it deprives these petitioners of basic constitutional rights secured in them by the Fourteenth and Fifteenth Amendments.

Now, the court -- both courts below answered that question in the negative, said that it is not the business of the federal courts to entertain and resolve the controversy, the dispute, which is created by these allegations, which are purposes of this review, I can take this is true.

And that disposition of the case was not based upon cynicism or indifference.

The courts below in saying to the petitioners that your remedy is not in the courts of the United States, your remedy is -- is to be found in the Alabama State Legislature, which you say is the body which has denied you -- your constitutional rights.

As the opinions below demonstrate, this case has received in most careful and thoughtful consideration.

And the decision below is based essentially upon three grounds, one, as to the nature of the statute here.

This was a statute which defined municipal boundaries and at such a statute, under the decisions of this Court in three cases, such statute may be enacted by a state legislature wholly unrestrained by the provisions of the Constitution of United States.

A legislature in drawing municipal boundaries and extract it -- and expanding them or contracting them as the case may be acts entirely as it pleases.

The second ground is that this -- this law on its face has not a word on -- on race and color.

It's neutral.

And the absence of an expressed discrimination on race and color makes it wholly improper for the courts to inquire into the motives of the individual legislators.

That was the second ground.

The third ground as -- was as to the inability of the federal courts to grant relief or the impropriety of granting relief, assuming effective relief could be given.

Now, I hope to deal with each of these grounds, but I think the hypothetical case of Mr. Justice Black has put may illustrate the Government's position on this.

I think -- we think that the Constitution of the United States serves as a complete obstacle to the establishment by law in America of any racial or religious ghettos.

If they state the union were to embark openly or validly without any pretense on the policy of geographical separation of the racist into separate communities, a policy which is sometimes described as the policy of apartheid.

If a State were to embark that, on that policy, who were to declare that -- as a matter of policy to avoid hostility between the races, to reduce racial tensions, the State considers it desirable, that people of different races live in separate communities.

That within each community, they will have full rights, full voting rights, full rights to municipal services, but they shall have a mayor of their own race, they shall have a city counsel of their own race, they shall have judges of their own race, jurors of their own race.

If in short, the State of Alabama, instead of drawing a line here, which it has had created two communities, White Tuskegee, Black Tuskegee.

We do not think this Court would consider a sufficient defense in such legislation, that the people who left in Black Tuskegee had full voting rights or had just as good police or better police, or fire protection, or health protection, or if their garbage was being picked up with as much frequency as the people in White Tuskegee.

It seems to us that in October of 1960, that kind of defense of -- of a -- at a -- of a law establishing a ghetto in the United States need -- need not -- cannot be asserted in this Court.

Now, the first ground of the decision below --

Justice Hugo L. Black: I assume that you're arguing based on the premises, they have to accept on the allegations of the bill that this was done by the purpose of excluding these people to see that none of them stayed in the City of Tuskegee.

Mr. Philip Elman: No, sir.

I -- I -- in this respect, the United States does not agree with petitioners.

The petitioners have assumed a burden, which we do not -- do not think the decisions of this Court construing the Fourteenth Amendment as applied to racial discriminations requires them (Inaudible).

The petitioners need only show that this legislation, although cast in terms which do not reflect race and color is in substance and effect a racial discrimination.

They need not show that the purpose of the Legislature was good or bad, that the motives were -- were worthy or unworthy.

This Court in cases going back to Fletcher against Peck has rejected that line of inquiry.

As you said in -- in the -- Chief Justice said, for example, Norris against Alabama, Chief Justice Vinson in the Oyama case.

The inquiry is not whether a -- a constitutional rights have been denied in expressed terms.

The question is whether they have been denied in substance and effect.

And in the jury cases for example, Your -- Your Honors have frequently heard arguments that the -- that the commissioner who puts his hand in the box, which has yellow slips for Negroes and white slips for -- for white people, he -- he has testified without contradiction that the farthest thing from his mind was race.

His purposes, his -- his motives were -- were wholly admirable.

He was not thinking of race at all, and this Court has said that it would have to be a -- the blindness of indifference rather than the blindness of impartiality, which would attribute to a systematic result, such as the exclusion of Negroes from juries over a large period of time, whether the exclusion was total or not.

It would have to be compressive --

Justice Hugo L. Black: As I understand you -- as I understand your argument, if I -- if I get the distinction, it is when you have a situation like this where a law has been passed, which cuts out the colored people from the area and puts them -- creates a -- decreases the size of the city.

It leaves them on the outside of that city.

And so if you look at it and see the -- the effect of it is, is that they deprived the living of having the area on which they live inside the city so that they can get the advantage, that -- that violates the Constitution.

Mr. Philip Elman: We are saying --

Justice Hugo L. Black: The effect.

Mr. Philip Elman: We are saying that any law which if you look to the reality rather than the appearance, if you look to what it is and what it does rather to what it says.

If that law in actuality draws a racial line, that is sufficient under the Fourteenth Amendment to establish its invalidity regardless of what may have been in the minds of the particular officials of the Government who were concerned with the drawing of that line.

That is our position.

We think it's the position that this Court has -- excuse me Mr. Justice Whittaker.

I'm sorry.

Justice Charles E. Whittaker: May I ask you Mr. Elman, in that connection, does this line do that?

Is there a provision against the Negro only filing night, day, any property inside the line?

Mr. Philip Elman: The question is -- isn't whether there are prohibitions as to a -- or burdens on the Negroes.

The question is whether this statute draws a racial line.

If it draws a racial line, we would think it -- it is immaterial, whether they a -- the result of the -- of the drawing of that racial line may result in -- in burdens or not.

Justice Charles E. Whittaker: True but I will --

Mr. Philip Elman: Class legislation, if I may continue, sir.

Justice Charles E. Whittaker: Yes.

Mr. Philip Elman: Class legislation on the basis of race or color, we think, has been barred by the Equal Protection Clause of the Fourteenth Amendment as it's been construed by this Court from cases starting with the Slaughter-House cases and started in West Virginia going through the line of cases exemplified by Brown against Board of Education.

If people live in a ghetto, it doesn't make any difference if the houses in the ghetto were finer than the houses on the outside.

The point is you cannot in this country enact legislation, which is -- which contains a racial class -- classification.

Now, in others -- other areas, classifications between farmers and working men for example or other, in tax legislation hearing -- that this Court is always faced with the -- the problem of -- of scrutinizing classifications and the classic formulation of the scope of your inquiry is -- is there are rational basis for such classification.

But when it comes to race and color, you don't -- you are spared to that problem because the Constitution and the Fourteenth Amendment have declared that race or color is an impermissible basis of classification.

Justice Charles E. Whittaker: I would assume that that result to that much have been clever basically that is a violation.

Thus, it was difficult in any way, ownership by any ways on either side.

Mr. Philip Elman: No, sir.

The answer is no, but we think it is immaterial because if the statute in express terms declared that the City of Tuskegee shall be redistricted or redraw -- its boundary shall be redrawn in such a way that as many Negroes is possible shall be removed from it.

If that duty were entrusted to an administrative officer or a city surveyor, that -- that would -- I am very confident to present, no problems to this Court or of any court of the United States.

Justice Felix Frankfurter: Even though the statute had to provide though, however, if they can, they may buy new houses and new bag.

Mr. Philip Elman: Exactly.

Supposed -- supposed for example, I -- I may be restrained from the issue here, but supposed for example, a -- a municipality were bent upon avoiding the consequences of -- of Brown against Board of Education and it redrew a school -- this school attendance districts in terms of the existing residential pattern.

Now, surely, the fact that a child -- a -- parents of a Negro child wanted to attend some other school would have the right to sell their -- their house and try to find their house in a -- in another neighborhood.

Even if that right were expressly recognized by the -- by the statute, it's hard to see that that would constitute the kind of constitutional justification for violation of rights, which this Court has said light of very base of Government.

We're dealing -- the courts everyday in a week or ascertaining the intent of the Legislature, they're looking to the meaning of the statute, they're piercing corporate veils, they look to substance and not to form, they're doing it in the context of a corporate reorganization cases.

This is a -- this is a case where people are coming into the court and saying, "We are being deprived of our most fundamental rights.

We are being deprived of these rights because of our color."

And if a court --

Justice William O. Douglas: Suppose -- supposed that we reaching this argument, it's pretty far historically.

The school districts had been drawn with the view of a -- these set of school system.

Your argument doesn't permit a (Inaudible) challenge those and have them redrawn by different standards.

Mr. Philip Elman: My argument --

Justice William O. Douglas: Your argument might --

Mr. Philip Elman: My argument would be --

Justice William O. Douglas: -- would -- would allow redrawing of some municipal lines perhaps.

Mr. Philip Elman: The argument that I'm presenting on behalf of the Government is not in any way implied that the Federal Court will be redrawing municipal boundaries or redrawing some of the school attendance district.

The question here is whether the federal judicial power is available to consider and adjudicate a claim that a particular action, particular governmental action, these instances, state law.

Justice William O. Douglas: We understand that.

Mr. Philip Elman: Is -- is in violation of the Constitution for this?

Justice William O. Douglas: But it has something to do with the -- drawing of lines by somebody.

Mr. Philip Elman: If it is -- if it is, the question is whether a declaratory judgment will suffice should the Court go further and enter an injunction against the enforcement of the law, which is declared not invalid, should allow a reasonable period for the State Legislature to attempt to enact other lot.

All those questions are going to be presented when the District Court, if he reaches it, has to decide what kind of relief should be granted, but they're not here.

The question here is, whether this complaint should be dismissed for lack of jurisdiction and for lack of judicial power to consider it.

That's the question.

And unless you are -- unless the Court is prepared to say that there is nothing at all that any court can give by way of relief, then I think, the question of relief would be come relevant here.

And I don't think that it can they assume as it was in one of the opinions -- the opinion of Judge Wisdom below that, "No Court can grant effective relief here because the day after it's a decision in validating this law, the Legislature of Alabama may enact a new law with slightly different variation and there will be new litigation and -- and there might be an endless series of -- of lawsuits.

Well, certainly, the -- the premise that a legislature of a State, the United States is -- is not going to respect the determination of the court.

The language is charged with the duty of determining what the Constitution means and then it's -- it is -- and you -- you assume that it's -- it's going to -- its purpose will be to flout in every conceivable way that determination.

I don't' think that premise can be asserted or accepted by this Court.

Justice Felix Frankfurter: But if you do not have to work (Voice Overlap) --

Justice William O. Douglas: You misunderstood my question.

Justice Felix Frankfurter: Go on.

Justice William O. Douglas: My question wasn't -- you misunderstood my question.

Mr. Philip Elman: I -- I'm sorry.

Justice William O. Douglas: Suppose this was a class -- a historic pattern of the City of Tuskegee and those who were out were trying to get in.

What would you say to that?

That's comparable --

Mr. Philip Elman: Then, I -- I would --

Justice William O. Douglas: -- to the school district case that you wrote.

Mr. Philip Elman: No, the school district case I -- I suggested --

Justice William O. Douglas: (Voice Overlap)

Mr. Philip Elman: -- presented the case of -- of a specific action withdrawn on a base of race or color not an existing -- an existing fact in which --

Justice William O. Douglas: Oh, those are existing facts in many communities.

The --

Mr. Philip Elman: Well, it's -- it's hard offhand for me to -- to think of an existing fact being in violation of the Fourteenth Amendment.

I -- I have to find some governmental action which violates the Fourteenth Amendment.

What did the State do?

And here, the State did something.

Justice William O. Douglas: Well, every municipal line was withdrawn by some state authority I suppose.

Mr. Philip Elman: Yes, sir.

And if it's drawn even though in terms -- without regard to race or color, if it is in substance and effect a racial line, we think the Constitution permits you to at least consider an allegation along those lines.

Now, this isn't particularly unique in the field of racial discrimination.

Your -- Your Honors have had the cases like the Gross Gene case coming from Louisiana, and the facts on the newspaper advertising, held unconstitutional, is a violation of the First Amendment, not a word in that statute about interfering with freedom of the press.

The Court held that that statute burdened the exercise of the constitutional right of the -- of the free press.

There was no suggestion that the federal court should have made an inquiry into the motives of the members of the New Orleans -- of the Louisiana Legislature as to whether they intended to burden the press.

Your Honors look at the operative effects of this legislation.

You look to what it did, not to what it said, not to the image of the statute, but to the reality.

Now --

Justice Hugo L. Black: What it does and we look -- merely what it does without thinking about why they did it, what it does regarding the allegation which I understand.

We created the boundaries of Tuskegee in such ways that they eliminate them merely all of the colored voters, so that they were no longer in that area, but they would put outside of the area and if they claim, it has the rights to do it, they go to the appellate and came down with the city's standards.

Mr. Philip Elman: The State is claiming more, sir.

Justice Hugo L. Black: And what you claim, well -- if that, that's one them.

Mr. Philip Elman: They're claiming that you have no right to inquire --

Justice Hugo L. Black: You're arguing that --

Mr. Philip Elman: -- in their -- in constitutionality of that statute because it is a statute redrawing the boundaries.

Justice Hugo L. Black: I gather that you're also saying that it creates a burden on the right to vote because of color.

Mr. Philip Elman: Yes, sir.

In this case -- that in this case, there was a Fifteenth Amendment argument which on the allegation of the complaint, is a -- is we think a perfectly valid argument.

Prior to this Act, these people did, these petitioners had the right to vote in municipal elections.

Now, that right could've been taken away from them by a valid law redefining the boundaries.

They had no vested right to live in Tuskegee, obviously.

But they did have a right under the Fifteenth Amendment not to have their voting rights taken away because of their color.

It could've been taken away for other reasons, but not for that reason.

Justice Hugo L. Black: The trouble I have to that, I'm not talking about an ultimate conclusion of what happened.

The trouble I have is -- is the difficulty I have in drawing the conceptual distinction between an argument that you don't have to think a call about what is done from it.

But you just look to see its effect and of course, at each instance, without voting rights of people have changed, when they're against a new territory, are cutout since they are drove in this problem.

This case illustrates the new failures of the fight that's been going on.

Most of us are familiar with the tribes from those who lived on there, outside in a both hand, what (Inaudible) done that vested right not to be in the municipality.

This is a new face of it, brought on by this that you found it (Inaudible)

But I -- I can't see myself how you can go on, wholly on the basis that you don't have to have evidence.

Well, were -- in your judgment would be admissible to show that they also have a bill, stated that was his purpose?

Mr. Philip Elman: I think Mr. --

Justice Hugo L. Black: Is that something like the evidence that happened from the --

Mr. Philip Elman: Mr. Justice -- Mr. Justice Black, the question of proof of course, technically speaking, is -- is not clearly here.

Justice Hugo L. Black: I know it's technic, but -- but actually it is.

Mr. Philip Elman: It actually it is.

And now, I will not dock the question on that ground.

So far as what kind of proof is concerned, it -- why should the petitioners in this kind of a case had a greater burden than was put upon the plaintiff in -- in the -- in the case for example, in the United States last year in the case of United States against Thomas where -- the voting case, where Judge Wright found that there challenges to 1377 Negro voters and only to 10 white voters and he said, "As a matter of statistics, just looking at the numbers, somehow or other, the Negroes were challenged and the whites weren't."

And from that I infer that this was a racial action.

Now, we think that in this case that -- that the maps, the population in themselves, are -- should establish a prima facie case.

It's -- it's enough to shift the burden of going forward to the State.

If the State -- if there's -- if there is a rational justification for this other than race or color, surely, the State can -- can come forward with it and should be compelled to come forward.

And -- and in cases for example, like the Bates case, it was before you last year, you -- Your Honors have said, on the face of it, we see no discernible justification for this -- if this there is that the-- the navels is sustained.

If it can be met, if there is such a discernible justification that we don't know about, let's hear from the State.

Justice Hugo L. Black: As I understand it though, you finally get, whether you called it purpose or something else.

It seems to me, it has to be met and what you get to, I'm not saying it has to be made.

What you get to is this, that you -- it's claimed here that if a State exercises its general power to change the boundaries of municipality in way this has, in such ways it bar a great many people in remaining in the city, in that area who have lived there before and they are -- are actually all -- are all (Inaudible) in color.

But that's enough to say that the State has changed the boundaries of its municipality on the basis of color and they can't do it.

Mr. Philip Elman: Well, Judge Wisdom in his opinion below, his conquering opinion below held that this complaint had to fail because it required an inquiry into motives.

He used the word, 'motives,' motives of the legislators.

He referred to psychoanalysis of the members of the Legislature, prying into the subconscious motive.

Now, we -- we think that that poses this -- this puts up a strong end.

No one suggests when -- when a court is seeking in to ascertain the meaning of legislation or the, "intent" of the Legislature, that you take affidavits from the -- you subpoena the members of the Legislature and ask them, "Oh, just what did you have in mind when you voted for this or when you voted against it?"

That's not -- that's not the process of judicial inquiry into the meaning of legislation.

And we think that's -- that's all that you have to do.

Justice Hugo L. Black: I didn't make -- make a quote enough to what I was about trying to get from you to this.

Is this the point which we have to read that you have legislations there which it produce the size of the city in a way that takes practically all the colored people out of it, moving them into a different area, keep the others in there?

Is that -- that you say, is forbidden to the State because you can look at it and see that it was done on the basis of color and the -- and the Fourteenth Amendment forbids it.

Mr. Philip Elman: If you can see that, if you can see that, then it's forbidden.

If it's done there because they are colored and --

Justice Hugo L. Black: You said that they can't change (Voice Overlap) --

Mr. Philip Elman: And you don't look to the statute, but --

Justice Hugo L. Black: You can't change the area of the city at all on the basis of color?

Mr. Philip Elman: That's right.

Chief Justice Earl Warren: Mr. Carter.

Argument of James J. Carter

Mr. James J. Carter: Mr. Chief Justice and may it please the Court --

Chief Justice Earl Warren: Yes, you may.

Mr. James J. Carter: If I may before getting into the main part of my argument, answer a few questions that were asked yesterday that was not cleared up.

Mr. Justice Frankfurter asked when Tuskegee Institute was organized.

It was in 1881.

You also asked I believe Mr. Justice Frankfurter, about the previous boundaries of Tuskegee.

Tuskegee was first organized in 1866 with the boundary of 2.5 miles on each side, the boundaries being equidistant from the then courthouse.

In 1868, by an act of the Legislature, those boundaries were pulled in to an area of 1 mile square.

History gives some very interesting side lights of why that was done.

Later on, they were expanded again.

There have been several acts and I believe the last act that really touched the boundaries in any significance was an Act of 1898, which again placed the manner in this position 2.5 miles square.

The question was asked as to following police jurisdiction.

That's a general statute of Alabama applicable to all towns and cities, in towns having a population of 6000 people according to the last federal census, the police limits are 3 miles beyond the corporate limits and in towns of less than 6000 is 1.5.

Tuskegee at the present time has police jurisdiction of 3 miles beyond the new city limits by reason of the fact as we haven't had the official 1960 census, we yet announced nor have we had a legislature meet as it will next year after the announcing of that.

It's a -- the population of Tuskegee is less than 6000 without the next legislature then of course, we'll refer it back to the 1.5 mile limit.

Justice Felix Frankfurter: Of course it's the biennial legislature, isn't it?

Mr. James J. Carter: Yes, sir.

Meets next May.

Justice Felix Frankfurter: So that's a little ahead of the game.

So that if this statute, if 140 is invalidated and the old boundary revert, unless there's a special session of the Legislature --

Mr. James J. Carter: Yes, sir.

Justice Felix Frankfurter: It would take some time to do what Judge Wisdom feels it might be done, is that it?

Mr. James J. Carter: And you have this too, that you have the United States census being out of guilt because as I understand it, they're going by these boundaries.

Now and then the police --

Justice Potter Stewart: Mr. Carter, before you proceed --

Mr. James J. Carter: Yes.

Justice Potter Stewart: -- what's the meaning of this extraterritorial police jurisdiction?

Mr. James J. Carter: It means this --

Justice Potter Stewart: Is it a police power to arrest or is it a -- is it a day-to-day police protection from the State?

Mr. James J. Carter: They have a power to arrest, to answer calls and to actually patrol the area in most cities do.

As a matter of fact, they furnish police and fire protection to the entire area.

As a matter of fact, in this entire area here, they have water and electricity which is -- they have municipal electric plant which furnishes this entire -- none of this has been withdrawn.

Justice Potter Stewart: Now, do they pay -- of course, as I assume they pay for the water.

Mr. James J. Carter: They pay for water and electricity, but these people that have been on the outside of this city paid no city taxes.

In other words, since 1957, no -- no city taxes, the only taxes levy within the police jurisdiction off of businesses.

Now, business organizations pay one-half the license that people within they (Inaudible) would pay and that is based on if they -- they do get the police and fire protection and these health services.

Justice Potter Stewart: By health services, you mean what, garbage collection?

Mr. James J. Carter: Well, no, they don't have garbage collection as such but I mean they have the advantage of coming into the city health department, of any of that, it goes to have the water in the sewage lines, which of course are available there and are huge.

Now, we also point out here as to the population of this area, the way it was drawn, the little argument they pulled in, you will see here, for example, a rather heavily populated neighborhood.

That's -- that's a Negro neighborhood there, which begins out here and it goes way off.

Now, we are in a position here drawing lines that we must if those people wanted to do, so you must come in the city.

You're discriminating against this because we're colored.

That's another point.

Now, I believe Mr. --

Justice Felix Frankfurter: (Voice Overlap) I didn't -- I didn't take in what you've just said.

Mr. James J. Carter: I'm saying here that that gets back to the point.

I believe that one of the Justice, Mr. Justice Whittaker, someone asked that if you had people on the outside the city in the area, if you would be discriminating against them if you didn't take them in.

And so that would illustrate that particular point if these people in, say green, would open here, wanted to come in the city.

Justice Potter Stewart: That's never been a part of the city.

Mr. James J. Carter: Never been, no, sir.

Now, I believe yesterday there was some method asked about the procedure for changing boundaries.

The Constitution of Alabama provides and this Act was not as -- the first counsel suggested a private act.

It was a local law.

Pass after notice and proof regarding to our Constitution, to pass such a law, you have to advertise it for weeks.

That's to give the people affected, I tend to come in and protest if they desire to do so.

As far as I know, there's no -- this -- this law is advertised, no protest was ever made.

Now, that's a perfectly legal and been upheld by our State Supreme Court as being the proper way to change boundaries.

In fact, nearly all boundaries in Alabama changed that way, harm the session of legislation of what means.

But you won't have 50 to 100 boundary line changes.

There's probably been thousands since our Constitution in 1909.

Now, there is -- there are other ways of changing boundaries.

For example, in the city, the city made by -- initiate its own proceeding.

The counsel may propose it and by -- present it to the probate judge and then by popular election, bring in additional territory.

You could also contract the city that same way the city here could initiate it.

This was state action, however not city action.

This was done by the state legislature.

Also I thought as to fact that a -- that people, 75 or more people, may form a municipality.

In other words the people outside here, they form their own municipality if they care to do so and may initiate the action and carry it right through separate by a popular vote.

Now, I believe that probably gets us down except to one thing that Mr. Justice Stewart makes in the essence that the district judge characterized this as a sea dragon.

That was the plaintiffs that characterized the sea dragon.

He put it in quotes in his opinion.

Now, as we look at it, it might be a bit of a descriptive term and it would take ones imagination but that's not too unusual looking outfit when we look somewhere in the cities in the United States.

And last night I haven't pick up to run magnetic road add list and of course we've been a good bit out of this record all the way through, so we might just mention someone -- man in town of Pennsylvania.

I suppose it looks more like a cloud.

These boys, they used to lay on the grass and watch the clouds and figure what it looks like.

Concord, New Hampshire, Stanford, Connecticut, Scranton, Pennsylvania, it looks likes a jigsaw puzzle sitting on top of the other, Cincinnati, Ohio by this bed, even Sacramento California (Inaudible).

So you just don't know why the city has the boundary lines it has but let's get down now to what I consider.

If Your Honor please, to meet and the (Inaudible) in this case.

And that is this and finally after being in the lower court and the Court of Appeals, finally for the first time on page 11 in the petitioner's brief is we have to get them to admit there were such cases as Hunter versus Pittsburgh and Laramie County versus Albany County.

The Hunter versus Pittsburgh and Laramie County versus Albany County, Mount Pleasant versus Beckwith are the cases upon which we stood in the lower court of the fundamental merits here.

And that is the power of a State acting through its legislature as a sovereign right to extend comfort limits, to draw him in, to consolidate cities or to abolish it.

That's true of counties and it's true cities.

The first case only said, it was the old Laramie County versus Albany County which involves county lines and of course the county is simply a political subdivision of the State.

It's a creation of the State created for the convenient administration of Government.

Shortly after that, we came to Mount Pleasant versus Beckwith where they, again, pointed out that corporations are composed of all the inhabits of the territory, all the people who lived within the territory.

And they see that the organization and the territory maybe modified and I'm now quoting from Court by the mere wheel of the Legislature.

Now, that goes back, if the Court pleases, to other quotations we look into this constitutional limitation.

We find Professor Coolidge saying that they may as a political manner the drawing of boundary lines for cities and political subdivision peculiar that vested in the State.

And it says this, "If the legislative action in these cases operate injuriously to the municipalities or to individuals, the remedy is not with the courts.

The courts have no file to interfere and the people must be looked to, to write through the ballot box all these wrongs.

Justice Felix Frankfurter: Mr. Carter, what were the exact issues in anyone of those three cases, take Hunter against Pittsburgh or (Voice Overlap) --

Mr. James J. Carter: I assume --

Justice Felix Frankfurter: What exactly was done that was complained off?

Mr. James J. Carter: Alright, sir.

Justice Felix Frankfurter: Not a general language --

Mr. James J. Carter: Alright.

Justice Felix Frankfurter: But what was it --

Mr. James J. Carter: Alright, sir.

Justice Felix Frankfurter: Let's suppose we'll step down.

Mr. James J. Carter: Which either one or we take all of them

Justice Felix Frankfurter: (Voice Overlap)

Mr. James J. Carter: Alright sir.

Let's take Mount Pleasant versus Beckwith that was a question of creating municipal corporations out of parts of other corporations.

In that case, the main issue involved was a question.

Justice Felix Frankfurter: Who complained of what?

That's what I want to know.

Mr. James J. Carter: Alright, there was a city, the city was complaining about having to take on debts of another city.

Now, that was a city action.

Now Hunter versus -- Kelly versus Pittsburgh, if we take that one, was where the city around the State increase the limits and brought in Mr. Kelly's farmlands.

They brought about 80 acres of farmlands and Mr. Kelly, an individual, came in and said, "You are depriving me of my property without due process of law.

Now, this is what you do with it.

I've got farmlands.

You've increased my tax rate.

I've got to come in and pay for all the services of Pittsburgh.

You are charging me $2100 a year of taxes when I've only got $800 income."

In that case went all the way in the Supreme Court of the United States and had case say it, that didn't make any difference of what he said what portion of state shall be within the limits of the city and governed by its authorities and its laws has always been considered to be subject of proper legislation.

And he goes --

Justice Felix Frankfurter: He complained -- he complained and he was quite happy when he was outside --

Mr. James J. Carter: Yes, sir.

Justice Felix Frankfurter: -- Pittsburgh and now he's in the inside of Pittsburgh and the tax rate is going to be higher.

Mr. James J. Carter: Yes, it was most on that.

Justice Felix Frankfurter: That's all that was involved here.

Mr. James J. Carter: That's all, yes, sir.

I might be frank to say, none of these cases involve a racial situation, not in Hunter.

Justice Felix Frankfurter: Or fundamentally, they involved complaint by citizens of a smaller unit, it would a next to a bigger city or vice versa or --

Mr. James J. Carter: Yes, sir.

Justice Felix Frankfurter: -- a big city having been struck down to it.

Mr. James J. Carter: Yes, sir.

That's correct.

Justice Felix Frankfurter: In short, they involved the relation of the municipality to the State.

Is that right?

Mr. James J. Carter: And the people in that municipality to a State and the municipality.

Justice Felix Frankfurter: All of them having been originally created and their boundaries having been declined by the State.

Mr. James J. Carter: Yes, sir, just in Tuskegee, the -- the city Tuskegee was originally organized by, its boundaries defined by the States and most recently defined by the State, not in Hunter.

So there --

Justice Felix Frankfurter: The analog would be some neighboring little village had been next to Tuskegee or a division has been made of which your, such, calculation regarding the population distribution could be made as it's made in the State.

Mr. James J. Carter: That would be -- that would be --

Justice Felix Frankfurter: Is that right?

Mr. James J. Carter: That would be true if you wanted to get something directed.

Now, I'll admit that I don't have a white horse case on this but I do have the law which has been followed and affirmed and reaffirmed in every state in this union.

Justice Felix Frankfurter: Can we agree if you have language?

Mr. James J. Carter: Language if you please.

Yes, sir, I think it's a law because I believe it's been repeated and I think it's been followed by this Court that it has -- just because I don't agree with Judge Brown in his dissent and said, "You've only got one case that had been decided in the -- this century."

Well, I don't think because the case is old and it makes it bad law, but not in Hunter.

We said this and they go back to it and I agree with you.

There was a question of bringing -- allocating in to Pittsburgh.

We are allocating they had a nice little town and they had all their debts paid and they had all of their facilities in Pittsburgh was trying to do everything in going that going there.

But they said this, "We have nothing to do, was the policy, wisdom, justice are bad as to act under consideration."

Those questions are that the court -- the consideration of those whom the State has entrusted this legislative power.

It goes on to discuss what municipal cooperation that they are simply political subdivision.

Then says a State may add its pleasure, modify withdraw those powers, extend the contract to territorial area.

And said that all these respects, the State is supreme and its legislative body conforming his action to the state constitution may do it as it will on the restrain by any provision of the Constitution of the United States.

Now, we take flat foot in the position in this case, that this is a case within the confidence of the State of Alabama to fix the boundaries of his municipalities.

Justice Felix Frankfurter: You're really resting, are you not Mr. Carter on legal (Inaudible) and I don't mean to use the word, derogatory.

But you're resting on a legal absence, that the creation, the destruction, and modification of municipality, is the political functions of the State not subject to judicial review.

Mr. James J. Carter: If Your Honor please, I think that be a fast statement of my position.

That's one of my positions and three but I take that as you take it.

Justice Felix Frankfurter: You mean you take that.

Mr. James J. Carter: Yes, sir.

As a legal absolute and one is become so firmly and -- embedded and the jurisprudence to this country that I think would be getting into a real ticket if we ever got beyond it.

Now, as Your Honor pointed out for --

Justice Charles E. Whittaker: May I ask Mr. Carter --

Mr. James J. Carter: Yes, sir

Justice Charles E. Whittaker: (Inaudible) could this lawful power construe with confidence that being through unconstitutional objectives?

Mr. James J. Carter: Of course to that extend Mr. Justice Whittaker I won't say that -- that there's no possible situation that it might not be abused.

But I do say this.

I think it's a matter even then, that the States himself should have an opportunity to correct by going to the state courts to do it.

If -- if they did get off base on something like that.

For example, in many things, that the Courts have said and I believe Mr. Justice Frankfurter pointed out in Colegrove versus Green that courts just can't do.

That -- that -- to some extend, he pointed out for example that we have some constitutional guarantees that -- that can't be enforced for example the guarantee of a Republican form of government, the congressional regulation of the Indian tribes, the legislative executive control of foreign relations, the control of civilian and military appointing power.

They only get the civilian and military appointing power, just keep touch it.

This Court has decided that recently.

The inherit wisdom of any legislative executive policy, if you were to see that laws have faithfully executed.

And then we go on beyond the fact that stay on boundary lines, we've got the old cases from this Court of Benson versus United States were there.

A man was on trial for his very life.

And the issue in that case was, did this occur on Fort Leavenworth Military Reservation, didn't it?

And he took the position that it was all land owned by the Government but he had never used it for reservation and to show what answer to it was the executive as determined that these are the boundary lines of Fort Leavenworth Reservation and that is it.

And in that case, it went all to all the proposition that there was -- there were things within the legislative an executive field and throughout the cases and all of them and every state of country as (Inaudible) Hunter and Laramie and the others, they have consistently held that the drawing of boundary line in cities is a legislative and not a judicial function.

We come back to this proposition in this case to -- to get to the racial angle.

Of course, we would have to go back and see what the legislatures -- Legislature meant.

Of course we speak of intent and reaching of intent and construction of legislation and -- and that's true.

But of course that's an ambiguous legislation where -- where we always go back to commit a reports.

Here, there is none.

There's nothing in the act.

There's nothing to construe in the statute from that end.

These are the boundary line period.

That's the only boundary line.

Now, when we come to motive and motive is really what we're talking about.

We can fence around whether it is purpose or intention.

The purpose and intention I believe in South versus Peters, there, the contention was made that the purpose are effect of the Act, it was worthy use but this Court still went off there.

It didn't go into that.

They didn't -- they didn't go to the proof act.

But this Court has said repeatedly.

And we go back to the Duplix Printing Co. & Press case that even on acts of Congress, you can't take what legislator say and read into that the motive behind it.

It just can't be done.

And we go back to the verb beginning of this country Fletcher versus Peck.

That was a case where it was alleged that the legislators of the State of Georgia had bribed to pass certain legislation to make land grants.

And Mr. Chief Justice Marshall refused in that case to even inquire into it, saying that the motives could not be inquired into.

The courts consistently followed that line.

Mr. Justice Holmes, in Koller versus The People of Michigan said that, knowledge, negatives or manners or motives of legislators will not be inquired into.

Terry versus (Inaudible) reaffirmed the principle, Arizona versus California, again by the Supreme Court of the United States where it was alleged that the numbers of Congress had some ulterior motives in trying to pass that act.

Somehow, it was trying to do it for personal reasons and to -- to make a lot a money, and they said motives which induce members of Congress.

To pass a Boulder Canyon Project Act will not be inquired to.

There are things with which the Court may not inquire.

And we say there we can talk about motive or purpose or affect, that's what we're talking about.

And they want to go here to certain -- they wanted quote for example from what the newspaper said that the author of this act said, when he first advertised it, before it was introduced in the Legislature.

They even go so far in the record as to cite an article from the New York Times, Time magazine.

Now, may it please the Court if we have to get the part of determining motives of what people mean by what magazines say about us or about our courts or about our legislature.

We have put in bad shape because we just can't always determine motives that way.

Now, to my third point, to me I think it is an important part, and that's the question of judicial restraint in cases of this kind.

We have a number of cases, we --

Justice John M. Harlan: Mr. Carter --

Mr. James J. Carter: Yes, sir

Justice John M. Harlan: -- my I ask you a question?

Mr. James J. Carter: Yes, sir --

Justice John M. Harlan: You first argue --

Mr. James J. Carter: -- Mr. Justice Harlan.

Justice John M. Harlan: According the statute on its base, it said that, suppose the State of Alabama reserved segregation in that city and therefore this Tuskegee would be redistricted so as to divide the (Inaudible)

Would you still say that would be on the power the federal courts to attach?

Mr. James J. Carter: No sir, I think the decision to this Court it may deter that when you have the statute says, it has to be stricken down, if you done that in the school segregation case, as a matter of fact in Alabama, we do have a constitutional provision of segregation.

But we are not here inline upon that.

We realize that there's been a change of climate and that the recent decisions will clarify those points.

And what I'm saying here, understanding flatfootedly upon the proposition, that in a case of this kind, whether it's says there's been a boundary change.

That the State has a right to do it, there is nothing here as was pointed out before.

Negroes live within Tuskegee.

Negroes live without Tuskegee.

They may change boundaries.

Nobody has been removed from Tuskegee except that there's some territory that has been attached from a municipal corporation.

Now, the single -- it -- it doesn't affect the schools.

It doesn't affect the services at all.

A simple question of drawing lines that -- that territory that was watched within certain limits, metes and bounds and now no longer there.

The metes and bounds are different, and they are different because of people that have a rights to draw or drew.

Justice Charles E. Whittaker: Mr. Carter, if you were here in this lawsuit formally to admit purpose, to be as allege.

You'd have then, would you not, the same situation as hypothesized by Mr. Justice Harlan?

Mr. James J. Carter: Yes, sir, I probably would.

Justice Charles E. Whittaker: But the question as you raised now is that there can be no proper proof of motive.

That's not a judicial inquiry, is that it?

Mr. James J. Carter: Yes, sir.

Yes, sir, I say that.

Justice Charles E. Whittaker: In other words, this is an exception to the rule that facts well-pleaded or admitted for jurisdictional purposes.

Mr. James J. Carter: Of course Your Honor to ask that and well-pleaded though, you must to have something that's susceptible of proof and relevancy.

Justice Charles E. Whittaker: Well, that's your point?

Mr. James J. Carter: Yes, sir.

Justice Felix Frankfurter: But Mr. Carter your answer to Justice Harlan's question, makes into a general proposition that you are standing on an absence.

Mr. James J. Carter: I am.

Justice Felix Frankfurter: Suppose -- suppose the Legislature of Alabama said, whereas these people of the United States has said and then quoted the thing you quote from Laramie County, from Beckwith, from Hunter and Pittsburgh.

Therefore, exercising the right to do what we -- judicially unreviewable power to do namely three district municipality, we redistrict it because for the wellbeing of the State, I mean they could for colored people to flock together, for white folks to flock together.

If that is bad, as I understand you to say that would be bad?

Mr. James J. Carter: I say it is because I'm not in a position to speak to the State of Alabama.

Now, I don't represent the State of Alabama in this case, but I would say this, if any legislature was ever foolish enough to put that into law, I think it should be not advantage.

But --

Justice Felix Frankfurter: Well, on that (Inaudible)

Mr. James J. Carter: But let me say this on the absolute.

I would say this that if purpose was admitted, if purpose was admitted, I think that without overruling Hunter, Laramie County and the others that the States would have the power to draw their boundary line regardless of the purpose.

What I'm saying is --

Justice Felix Frankfurter: (Voice Overlap) because I don't believe in it.

Mr. James J. Carter: Yes.

But if -- if that is a proposition, in other words, I say that purpose is not a proper inquiry in this case as to what the statute means.

Justice Felix Frankfurter: No, I'm not talking about this case.

I'm talking about whether you can't say those appropriately quoted things from those three cases are some of the generalities, unqualified generality, which court give expression to in deciding a concrete case that can stand scrutiny when a different case arises.

Mr. James J. Carter: I would say this, Mr. Justice Frankfurter, if I was put to the choice, I would take the position that even with that language, we would have uphold it.

Justice Felix Frankfurter: Well, very well, I can understand that.

Mr. James J. Carter: Yes.

Chief Justice Earl Warren: But Mr. Carter, you said that the motive cannot be judicially inquired into.

Can the results of the statute be inquired into judicially?

Mr. James J. Carter: You may look of course and see what a statute does, but I don't think it's awfully see the line and I don't know that anybody's ever define really the difference between motive and ultimate purpose.

Of course you can look at effect.

Chief Justice Earl Warren: No, --

Mr. James J. Carter: Most of --

Chief Justice Earl Warren: -- not ultimate purpose but ultimate results.

Mr. James J. Carter: Well, of course, you can look at any statute, see what it does.

You look at this statute to see where the line is.

Now, the effect of that line to see and who lives on one side or the other, I don't think is a pertinent inquiry in this case.

Chief Justice Earl Warren: Well, is it a -- is it a judicial -- a proper judicial inquiry?

Mr. James J. Carter: No, I do not think so because I say this.

We -- I get back again to the proposition that the Legislature has the right to draw line.

Somebody has put that power in it.

The courts can't draw the line.

Nobody else can draw that line that they have drawn it.

And they've drawn it in a -- in a way that is compatible with the Constitution of State of Alabama and I say it should hold.

Chief Justice Earl Warren: But suppose it's incompatible result that it achieves, is incompatible with the Constitution of the United States.

Mr. James J. Carter: Because there again, Your Honor, I don't see how we could determine that when we have the power to draw a line without going back and say really what is a motive of this thing, which the courts had said you cannot inquire into.

Chief Justice Earl Warren: I'm not talking --

Mr. James J. Carter: And we are --

Chief Justice Earl Warren: -- about motive.

I'm talking about the ultimate effect of the statute on the people who live in that -- in that city.

Suppose -- suppose that they access nothing with discriminatory nature but in effect, it does substantially affect the constitutional rights of the people who -- who live there.

Is there no judicial inquiry at all?

Mr. James J. Carter: Your Honor please, I feel to see here the constitutional rights that have been --

Chief Justice Earl Warren: I didn't -- I didn't say you have (Voice Overlap) --

Mr. James J. Carter: -- of those courts.

Chief Justice Earl Warren: -- (Voice Overlap) --

Mr. James J. Carter: Yes.

Chief Justice Earl Warren: You're talking about absolutes.

All I'm trying --

Mr. James J. Carter: Well, of course --

Chief Justice Earl Warren: -- to ask you is if it's a -- a proper subject matter for judicial inquiry.

Mr. James J. Carter: I think of course it would be --

Chief Justice Earl Warren: Well --

Mr. James J. Carter: -- in the proper case --

Chief Justice Earl Warren: -- if that all --

Mr. James J. Carter: -- the -- the courts always find a way to -- to look into matters if you could come in and say now, "We've got a case here with absolute violation of the Constitution."

But we have constitutional provisions that correlate, that mesh in together and we have one.

We have the Tenth Amendment, which says the States are supreme in certain fields.

If they have sovereign power to the old government and here they've exercised it and created a political subdivision to carry out the old parts.

They haven't taken away anybody's right to vote.

Chief Justice Earl Warren: Well, isn't that all they're asking for here to have -- to have an inquiry made by the court below?

Mr. James J. Carter: Yes, and they're asking --

Chief Justice Earl Warren: You are not asking us to decide anything here.

Mr. James J. Carter: But this -- this decision of itself what they ask, if Your Honor please, is to go into motive, to go into purpose and to tell the court below, and as he pointed out, this case has been very carefully considered by two courts and I was interested to know that they realized that.

It's been studied.

It's been studied on several theories, not only the constitutional issues themselves but upon the question of judicial restraint in the statute.

The court below looked and Judge Wisdom did, that this is about as highly political thing as anybody can get into as to where boundary lines go.

If we start drawing boundary lines as such for every ward and every precinct and everything is going to be question after question.

Now, in Colegrove, we get back to that.

In that case, of course, was your congressional redistricting.

It's not exactly this case and I wouldn't say that it pronounced any absolutes but it did point out that the courts generally refrain from getting into the political figure of districting.

Now, this is not, as I say, a congressional district but it does draw lines of a political subdivision of a State in the South versus Peters, where again we had the question of the Georgia unit vote.

And there, the courts simply went all from the proposition that it was a political question because it wouldn't get into it.

Now, there was a dissent to that case and the argument in that case was very much as it was here.

The argument in that case being that the effect and purpose of the Georgia unit system, its purpose and effect was to dilute and to cut down on the vote of Negroes, and I believe, labor, but this Court nevertheless with Justice Black -- Mr. Justice Black and Mr. Justice Douglas dissenting held in that case that it was not a matter for judicial concern.

We say that this is a matter of local policy.

We say as the cases are pointed out that it's a question of local policy, purely political, that the courts held all the -- all the way back, not only these matters of equity, but it's a matter of judicial abstention if you please or judicial self-limitation perhaps would be the better word.

They have refused to go in to cases of this kind, which pose the line drawing political questions that this would and someone said, "Then what's the remedy?"

He said the only remedy we could have would be to declare this Act unconstitutional.

Of course there, we go back to proposition that you -- you've got intervening rights and have come up in the meantime.

We have this Act that was passed in 1957.

It was advertised two to three months before that.

Nobody felt that they were discriminated against it.

It did anything to almost 14 to 15 months later.

And then they decided they were which makes you wanted sometimes that people had rather have a lawsuit than to try -- use their right to petition on the Constitution to say, "Well, I don't think this law is right and I wish you wouldn't do it."

Now, we'd assume that legislators will not listen to anyone.

We'd assume that their right of petition had to go down and discuss this thing as they don't go this far, but go somewhere else.

You -- you're not doing the right by us.

But no, the matter is going on.

They accept the benefits of no taxes.

Accept the benefits of their police and fire protection.

But now, we come back at this late 80s, even intervening election and say, "Oh no, let's get into this thing now and tell us maybe where the line should be drawn," and say, "But all the courts not drawing a line."

Well, of course you can say it in this case, but if we draw another in some way as some court sometime has got to tell us how far we can go.

What percentage of colored and white there must be?

Of course, somewhere, sometime, if that goes on, somebody's got to draw the line.

Justice William J. Brennan: (Inaudible) elections in Tuskegee?

Mr. James J. Carter: Every four years.

Justice William J. Brennan: Every four years?

Mr. James J. Carter: Yes.

Justice William J. Brennan: This -- this year one or they come in (Voice Overlap) --

Mr. James J. Carter: This year, September was the election.

In fact, they're electing new mayor.

He hadn't taken office yet, but they elected a new mayor.

Justice William J. Brennan: There won't be another municipal election until --

Mr. James J. Carter: For four years unless --

Justice William J. Brennan: Four years unless --

Mr. James J. Carter: -- somebody dies, they have a special election, that's correct.

So we have numerous questions, as elections void, one has already had this Government in this -- in the meantime been in a state of limbo, just what is the situation.

So we respectfully submit, if it please the Court, in this case.

That for the courts below to grant the relief that these petitioners ask, they would have had to have ignored precedents that have been established, reestablished, affirmed and reaffirmed throughout the history of America jurisprudence.

And we go back and we say again in the terms of Judge Wisdom.

We think he put very wisely.

He agreed with the majority opinion and he -- he wrote a concurring opinion on this question of judicial self-limitation.

As a matter of fact, the opinion of the majority and the opinion of minority, as well as dissent could well make the briefs in this case, my brief, his brief because they have covered the field factor.

But he did point this out and we'll come back to the situation in this case.

If the courts are to end in this statement, the cure is going to be much worse than disease if a disease really exist.

Thank you.

Chief Justice Earl Warren: Mr. Carter.

Rebuttal of Robert L. Carter

Mr. Robert L. Carter: I just have one word and I just want to point out to the Court what we -- again, what we think the propositions are before us.

What we are -- we have alleged, made allegations that Act 140 accomplishes disenfranchising based upon race and a denial of residence because of race.

It is our opposition, if the Court please, that we are entitled to have that both claims heard in the Court.

The abatement of racial discrimination has always been the business of -- of the -- of the courts and particularly, the federal court certainly since the civil war.

The fact that this was done by virtually of boundary lines and so forth we think makes no difference that the question we think that we're entitled to is to go into a court, to have a hearing and to put -- and to submit proof that racial discrimination, which we alleged had been accomplished and as such, we think that this is -- this is our case and that this case is governed as we said before by the race discrimination cases, where this thing has been aligned.

Thank you.