United States v. Dogan

• Decision Date: 10 May 1963
• Docket Number: No. 19638.,19638.
• Citation: 314 F.2d 767
• Parties: UNITED STATES of America, Appellant, v. Ellett R. DOGAN, Sheriff and Tax Collector, Tallahatchie County, Mississippi, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

314 F.2d 767 (1963)

UNITED STATES of America, Appellant, v. Ellett R. DOGAN, Sheriff and Tax Collector, Tallahatchie County, Mississippi, et al., Appellees.

No. 19638.

United States Court of Appeals Fifth Circuit.

January 26, 1963.

Rehearing Denied May 10, 1963.

H. M. Ray, U. S. Atty., Oxford, Miss., Burke Marshall, Asst. Atty. Gen., Harold H. Greene, Howard A. Glickstein, John Doar, Gerald P. Choppin, Attys., Dept. of Justice, Washington, D. C., for appellant.

Peter M. Stockett, Jr., Will S. Wells, Asst. Attys. Gen., Jackson, Miss., George Payne Cossar, Sr., George Payne Cossar, Jr., Hamilton Caldwell, Charleston, Miss., J. J. Breland, John W. Whitten, Jr., Sumner, Miss., Joe T. Patterson, Atty. Gen. of Mississippi, Dugas Shands, Asst. Atty. Gen. of Mississippi, Darryl A. Hurt, Special Asst. Atty. Gen. of Mississippi, Jackson, Miss., for appellees.

Before RIVES and WISDOM, Circuit Judges, and BOOTLE, District Judge.

BOOTLE, District Judge.

Here we have the unusual charge made that citizens are desirous of paying taxes and are not permitted to do so. This charge tends to become understandable when we learn that the taxes involved are poll taxes, that under the constitution and laws of Mississippi there is a close tie-in between the payment of poll taxes and the exercise of the franchise, and that the complaint filed in the District Court for the Northern District of Mississippi is in the name of The United States by the Attorney General under the Civil Rights Act, as amended, 42 U.S.C.A. § 1971, on behalf of aggrieved Negro citizens. The defendants are Ellett R. Dogan, Sheriff and Tax Collector of Tallahatchie County, Mississippi, Tom E. Harris, Circuit Court Clerk and Registrar of said County, and the State of Mississippi. The complaint alleged that at least since 1946 the Sheriffs of Tallahatchie County, including the incumbent Dogan, have followed the policy and practice of refusing to permit Negro citizens of said County, but not white citizens, to pay their poll taxes; that this policy and practice had deprived Negro citizens of the right to vote without distinction of race or color, and deterred Negro citizens on account of their race or color from attempting to register to vote. A preliminary and permanent injunction was sought against the Sheriff and the State of Mississippi to enjoin the acts and practices charged against the Sheriff, the complaint having been amended in this regard by adding allegations that Sheriff Dogan had failed and refused to afford to Negro citizens of said County the same and equal opportunity to pay poll taxes as is afforded to white citizens, and that Dogan's acts and practices had delayed, prevented, hindered, and discouraged Negro citizens on account of their race from paying their poll taxes. At the hearing for preliminary injunction no relief was sought against Tom E. Harris, the Circuit Court Clerk and Registrar of said County, the motion for preliminary injunction seeking to restrain the Sheriff and the State of Mississippi during the pendency of the action from: 1) engaging in any acts which would deprive any citizen in Tallahatchie County of the right to vote without distinction of race or color; 2) engaging in any acts which would delay, prevent, hinder, or discourage Negro citizens on account of their race or color from paying their poll taxes; 3) failing and refusing to accept and receive payment of poll taxes and issue receipts therefor from any Negro citizen legally assessed or assessable for such taxes in said County and State.

The complaint was filed on November 17, 1961. The motion for preliminary injunction was noticed for hearing for December 13, 1961, on which date there was taken up for hearing motions of Dogan and the State of Mississippi to strike from the complaint and from supporting affidavits attached thereto all averments recounting how Negroes, since 1951, had, from time to time, been rebuffed in their efforts to pay poll taxes, the objective of the motions to strike being to remove from the scope of the law suit all alleged acts of discrimination occurring prior to September 9, 1957, the effective date of the Civil Rights Act of 1957, or, in the alternative, prior to December 24, 1959, the date on which Sheriff Dogan assumed office. The court ruled that it had "some doubt that any evidence of the present Sheriff earlier than the effective date of the Civil Rights Act of 1960 which is May 6, 1960, should be considered on this hearing," but that "out of an abundance of caution, I will permit on the hearing to be had on the question of whether or not the court will issue a temporary injunction evidence to come in from December 24, 1959 * * * the day upon which this Sheriff * * * assumed office * * *." The court further held that the State of Mississippi was a proper party, and that the issue of whether or not a pattern or practice of discrimination existed within the meaning of subsection (e) of section 1971 had to be resolved in a separate law suit, or at least a separate evidentiary hearing. The hearing on the motion for preliminary injunction was reset for December 20, 1961 and after hearing evidence then for portions of three days the court took time for consideration and, on January 19, 1962, handed down its opinion. The court found that payment of poll taxes for two successive years next before an election is a prerequisite to voting in Mississippi,¹ except that at age 21 a new voter is exempted and there is no liability for poll tax after age 60. The court expressed doubt as to whether the Civil Rights Act had application to discrimination in the payment of poll taxes, stating that it thought defendants' position — that the statute applied only to the physical act of voting — was a reasonable one. The court said that in its strongest light for the plaintiff the evidence showed that only four members of the Negro race ever applied to pay poll taxes during the incumbency of Dogan and that of these four two were exempt from payment because of age. With respect to the remaining two applicants, the court concluded that their efforts to pay the poll taxes "were superficial at best", and did not "carry the hallmark of bona fide efforts in good faith to pay poll taxes." The court found that Dogan had issued instructions to his deputies to advise all Negroes who desired to pay a poll tax to see him personally, and recited the Sheriff's testimony that his reason for these instructions was because he had heard of investigations into voting matters in the county and he wanted first hand personal knowledge of all circumstances involved in any occurrence that might take place with regard to the payment of poll taxes by Negroes. The court commented further, "the evidence also shows that during the time with which we are concerned, anyone who came into either of the offices² for the purpose of paying poll taxes would be issued a poll tax receipt by the deputies in charge of the office if the taxpayer was personally known to them as being qualified to pay poll taxes, or, in some cases, when the person was found to be so qualified from the poll tax records in the office."³ The court found that the voting age population of Tallahatchie County consists of approximately 5,099 white persons, and approximately 6,483 Negroes. It also found that no Negroes had paid poll taxes during the tenure of Sheriff Dogan, or had been issued poll tax receipts. The court continued, "there is nothing in the evidence to indicate in any way why only two members of the Negro race who are liable for the payment of poll taxes in order to vote, have concerned themselves in any way with such payment during the time with which we are concerned * * *. Thus the two who expressed some interest as aforementioned in paying poll taxes would amount to about 1/20th of 1% of the non-exempt voting age Negro population * * * and when weighed in the light of plaintiff's allegations and claims of general discrimination 1/20th of 1% falls almost into the realm of `de minimis.'" An order in accordance with the opinion was issued on January 19, 1962 denying the motion for preliminary injunction.

On this appeal appellant urges two specifications of error. 1) That the District Court erred in refusing to find that distinctions on account of race or color have been made in the collection of poll taxes in Tallahatchie County. 2) That the District Court erred in excluding evidence of racially discriminatory acts occurring prior to the incumbency of Sheriff Dogan on December 24, 1959.

Discussing these alleged errors in inverse order, we think that the second specification of error is well taken. The appropriateness, in fact, the necessity, of admitting evidence of acts of discrimination prior to the beginning of the Sheriff's term of office is demonstrated by some of the reasoning employed by the District Judge in denying the temporary injunction. He based his denial largely upon the fact that only four Negroes had sought to pay poll taxes during the Sheriff's term, and that there was "nothing in the evidence to indicate in any way why only two members of the Negro race who are liable for the payment of poll taxes in order to vote, have concerned themselves in any way with such payment during the time with which we are here concerned. The record is silent in that regard." The record was silent in that regard because of the court's ruling that he would not admit any evidence of alleged discrimination prior to the beginning of the Sheriff's term. In fact, he sustained a motion of defendants to strike from the complaint and its supporting affidavits all averments of prior discrimination. If that evidence had been admitted, according to the affidavits themselves attached to the complaint, the record would show that one of these Negroes, Birdie Kegler, had been trying to pay her poll taxes "to the Sheriff's office since about 1951, but they have never allowed me to pay it." Her affidavit shows that s...