Hamer v. Campbell, 22552.

• Decision Date: 06 April 1966
• Docket Number: No. 22552.,22552.
• Citation: 358 F.2d 215
• Parties: Mrs. Fannie Lou HAMER et al., Appellants, v. Cecil C. CAMPBELL, Circuit Clerk and Registrar of Sunflower County, Mississippi, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

358 F.2d 215 (1966)

Mrs. Fannie Lou HAMER et al., Appellants, v. Cecil C. CAMPBELL, Circuit Clerk and Registrar of Sunflower County, Mississippi, et al., Appellees.

No. 22552.

United States Court of Appeals Fifth Circuit.

March 11, 1966.

Rehearing Denied April 6, 1966.

Morton Stavis, Newark, N. J., Bruce Waltzer, New Orleans, La., Martin R. Bradley, Jr., Buffalo, N. Y., Arthur Kinoy, New York City, L. H. Rosenthal, Jackson, Miss., for appellants.

Will S. Wells, William Allain, Asst. Attys. Gen., Joe T. Patterson, Atty. Gen., Jackson, Miss., Oscar B. Townsend, Forrest G. Cooper, Indianola, Miss., P. J. Townsend, Jr., Drew, Miss., Alfred A. Levingston, Cleveland, Miss., for appellees.

Before HUTCHESON and BROWN, Circuit Judges, and MORGAN, District Judge.

JOHN R. BROWN, Circuit Judge:

A Negro citizen, because of a pattern and practice of racial discrimination, has been denied the right to register to vote. After she registers pursuant to a Federal Court order, she will be denied the right to vote in a municipal election because she has failed to pay poll taxes for two preceding years and because she has not registered within the time allowed by state law — a deadline two months prior to the Federal Court order permitting her to register. Does she have standing to bring a class action on behalf of Negro voters similarly situated to enjoin the municipal election? We hold she does and reverse the holding of the District Court to the contrary. Could and should the District Court have enjoined the election? We hold that the District Court erred in failing to do so. Finally, under the special circumstances of this case, we remand to the District Court with instructions to set aside the election it should have initially enjoined.

On April 8, 1965, in United States v. Campbell, N.D.Miss., No. GC 633, the Federal District Court found that the Registrar of Sunflower County, Mississippi, for many, many years had deprived Negro citizens of their right to register to vote by means of a pattern and practice of racial discrimination¹ and, pursuant to 42 U.S.C.A. § 1971(e), enjoined these practices and entered a "freeze" order for a period of one year to allow the deprived Negroes a chance to catch up and to participate in the electoral process on the same basis on which white citizens have participated.² Within three weeks of the District Court's order 306 Negroes had registered for the first time in Sunflower County.

Unfortunately, their success in registering was illusory. Municipal elections in Sunflower County were scheduled for June 8, 1965, with primaries for these elections to be held on May 11 and 18. Because of two requirements of Mississippi law, these newly registered Negroes could not participate as voters in these elections. First, a municipal elector must have registered in the municipality more than four months prior to the general election in order to vote in the primaries and in the general election. Miss. Code Ann. § 3374-60 (1942 recomp. ed.). In this case the cutoff date was February 8, two months prior to the § 1971 (e) Federal Court order facilitating Negro registration in the county.³ Second, poll taxes must be paid for the two years preceding the year in which the offer to vote is made. Miss.Const. § 241; Miss.Code Ann. §§ 3130, 3160 (1942 recomp. ed.).⁴ Thus, Negroes, who were given their first opportunity to register by the April 8, § 1971(e) order, would be unable to vote in the forthcoming municipal elections, since it would be impossible for them to meet the four-month registration requirement and highly unlikely for them to be able to meet the poll-tax requirement. Similarly, because of state law, it would be impossible for any of these newly registered Negroes who desired to run for municipal office to qualify as candidates. In order to be a candidate for municipal office, a citizen of a municipality must be a qualified elector (i. e., must meet the four-month registration and poll-tax requirements).⁵ Miss.Code Ann. §§ 3374-42-55. Thus, for four years Negroes would be governed by city officials whose election they had no opportunity to participate in, either as voters or candidates.

On April 23 five Negro residents of Sunflower County filed this class action on behalf of all Negro voters and potential candidates of the County. After reciting the above facts, the complaint sought a judgment: (1) delaying the municipal elections and fixing new dates therefor, (2) fixing a new cutoff date for voter registration for the delayed elections, (3) fixing a new cutoff date for qualification of candidates, and (4) suspending the requirement that poll taxes shall be paid as a prerequisite to voting, or, in the alternative, allowing nunc pro tunc payment of 1963 and 1964 poll taxes.⁶ The plaintiffs also requested a preliminary injunction against the holding of the primary and general elections.

Although plaintiffs sought to enjoin elections in six municipalities⁷ in the County, they proceeded at the outset on the theory that they could represent a county-wide class of Negro voters and candidates. We agree with the District Court that under these circumstances there could be no county-wide class for the purpose of enjoining municipal elections throughout the county. We also agree with the District Court that as to four of the municipalities⁸ there was clearly no proper plaintiff-representative included in the original complaint. As to the two remaining municipalities, Ruleville and Sunflower, the District Court held that in spite of the fact that two plaintiffs resided therein, "technically, when viewed as a class action, this suit must fail."

We cannot say the District Court erred in its holding as to the Ruleville resident, Mrs. Hamer. Testifying that she desired to run for mayor, she purported to represent potential Negro candidates for municipal office. The principal obstacle to her effort was that she had become a qualified elector by registering and paying all necessary poll taxes prior to the March 12 cutoff date for filing as a candidate, and the election officials of Ruleville testified that had she so filed, her name would have been put on the ballot. She did not dispute this, but instead explained her failure to file by the assumption that it would be impossible to win with only one percent of her race eligible to participate in the election. See note 1, supra. We believe the District Court was warranted in holding "this court cannot indulge in this assumption." Also, there was no showing that any other Negroes intended to run for municipal office in Ruleville. Thus, there was no class of potential Negro candidates, and even if there were, Mrs. Hamer could not represent it since she could have been a candidate had she chosen to do so. Without a class on the one hand or a proper representative on the other, a class action pursuant to Rule 23(a) must fail. It is elementary that "an individual suing in behalf of the members of a class must be a member of the class which he is supposed to represent." 2 Barron & Holtzoff, Federal Practice and Procedure § 567, at 308 (Wright rev. 1961). See 3 Moore, Federal Practice #23.04 (2d ed. 1964). As to Mrs. Hamer and Ruleville, the District Court correctly held that no class action could be maintained on the basis of the original parties plaintiff.

The Town of Sunflower is a different matter. The District Court erred in its holding as to the Sunflower resident, Mrs. King. The Court found that although she did not register until after its § 1971(e) order, she had failed to pay the poll tax for the two preceding years (1963 and 1964), and thus even had there been no discriminatory practice preventing her from registering, she would still be unable to participate in these elections. It is true that there was no evidence of any discrimination in the acceptance of poll taxes, that Mrs. King could have paid, and that theoretically she had an obligation to pay, whether or not she was registered to vote.⁹ But we do not believe that her failure to do so should prejudice her right to maintain this class action. Two considerations buttress this belief.

The first is United States v. Dogan, 5 Cir., 1963, 314 F.2d 767, where we considered Mississippi's poll tax requirement and held that since it had been used as an engine of discrimination, its use should be enjoined. We also held the District Court can, in the exercise of its broad equitable powers, allow the payment of overdue poll taxes nunc pro tunc if necessary to remedy the past discrimination. Such relief is much akin to the judicial freeze order which we have so often sanctioned in voter registration cases (see note 2, supra) and which, indeed, the District Court used in United States v. Campbell. Both are recognitions of the judicial duty to eradicate for the future the consequences of part discriminations and to assure that the abuses do not continue. Though in Dogan we found discrimination in the acceptance of poll taxes among those (white and Negro) seeking to pay them, while there was none here, we would do violence to the raison d'etre of doganizing, and freezing, were we to limit this relief to the situation we found there. There we said, "A glance at the constitution and statutes of Mississippi reveals the close tie-in between payment of poll taxes and voting * * *." 314 F.2d at 773.¹⁰ The only consequence of failure to pay poll taxes is loss of the franchise. We should not blind ourselves to the futility of payment by citizens who could not vote anyway. The plaintiffs here only want "for the Court to see what `all others can see and understand * * *'" United States v. State of Mississippi, S.D.Miss., 1964, 229 F.Supp. 925, 998 (dissenting opinion), reversed, 1965, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717. The relief we felt proper in Dogan — allowing payment of poll taxes nunc pro tunc — just happened to be in response to a situation where the poll tax itself was the vehicle of the past...