Blackman v. Stone, 6592.

• Decision Date: 03 February 1939
• Docket Number: No. 6592.,6592.
• Citation: 101 F.2d 500
• Parties: BLACKMAN et al. v. STONE et al.
• Court: U.S. Court of Appeals — Seventh Circuit

101 F.2d 500 (1939)

BLACKMAN et al. v. STONE et al.

No. 6592.

Circuit Court of Appeals, Seventh Circuit.

February 3, 1939.

Hart E. Baker, of Chicago, Ill., for appellants.

John Kasserman, Asst. Atty. Gen., for appellees.

Before SPARKS, Circuit Judge, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

This action in equity was originally instituted on October 12, 1936, by Abe Blackman and forty-three other persons on behalf of themselves and all others similarly situated. The bill alleged that the plaintiffs were citizens of the United States, of lawful age, and had been residents of the State of Illinois for more than one year immediately preceding the filing of the bill; that each was a duly qualified and registered voter of that State, and that they were desirous of having the names of certain individuals (being candidates for President of the United States, Vice-President of the United States, United States Senator, members of Congress, and State officers in the State of Illinois, all members of the Communist party) placed on the election ballot so that the plaintiffs, and others similarly situated, might vote for them at the ensuing election in November. From the bill it appeared that a petition containing over 25,000 names of qualified voters of Illinois had been filed with the Secretary of State by appellants and their associates, asking that certain officers named therein be placed on the ballot as Communist candidates for State and Federal offices. Included in this total there purported to be signatures of 200 qualified voters from each of at least 50 Illinois counties. Upon the filing of this petition an objection was filed with the Secretary of State to the certification of the Communist party candidates on the ballot. Thereupon, the Secretary of State sent a copy of the objection by registered mail to the plaintiffs, together with a notice of hearing of the same by the Board on September 25, 1936. On that date the Secretary of State, Auditor, and the Attorney General, as statutory members of the State Officers Electoral Board met together with the Communist candidates. The latter, appearing specially, objected to the State officers named acting on the Board for the reason that they were candidates for election. Thereupon, those officers declined to act as members of the Board. On the following day appellees Stone, Orr, and Jones, who were members of the Supreme Court of Illinois, and oldest in point of continuous service on that court, declared themselves to be the State Electoral Board, in accordance with the Illinois Statute,¹ and proceeded to hear the objections.

At that meeting the Communist candidates appeared specially and objected to the jurisdiction of the newly constituted Board. Thereupon, that Board ruled that it had jurisdiction to hear and determine the objections, and, upon such hearing, held that plaintiffs' petition was insufficient. The basis of the finding was that some of the signers of the petition were not qualified because they had already voted for other candidates for the same office in an earlier primary and were not qualified to sign a petition for a new party or other candidates under the Illinois Statute, Smith-Hurd Ill. Statutes, chap. 46, § 293, thereby reducing the number of petitioners to less than required by the Statute.

By way of relief, the bill sought to enjoin various named county clerks of Illinois from printing ballots for the election of November 3, 1936, without including thereon the names of the candidates designated in the bill; or if the ballots were printed, to prevent the clerks named from distributing them without including thereon, by printing or paster, the names of the Communist candidates.

They further asked a mandatory injunction against the Governor, Auditor, and Secretary of State of Illinois, directing them to certify to the county clerks of Illinois the names of the Communist candidates named in the bill.

They further asked that the action of Justices Stone, Orr, and Jones, acting as the State Electoral Board, be declared void because of lack of jurisdiction. The bill further alleged that the plaintiffs were without any plain, adequate and complete remedy at law because their rights could not be compensated by money damages; that such damages would not be subject to accurate and correct computation; and that the plaintiffs would be required to bring a multiplicity of suits at law to recover such damages in full.

Appellees filed a motion to dismiss the bill. It was heard by the District Court, composed of three judges, under 28 U.S. C.A. § 380, and a decree was entered dismissing the bill on the ground that courts of equity would not assume jurisdiction of suits to protect invaded political rights. A fuller statement of the facts and of the ruling is set forth in Blackman et al. v. Stone, D.C., 17 F.Supp. 102. Upon that order the Supreme Court of the United States granted certiorari; and on March 8, 1937, vacated the decree of the District Court on the ground that the cause, so far as relief by injunction was sought, had become moot. This order was without prejudice to action by the District Court in relation to any matter which might remain in the cause. Blackman v. Stone, 300 U.S. 641, 57 S.Ct. 514, 81 L.Ed. 856.

On September 29, 1937, appellees filed their motion in the District Court to dismiss the bill. This was heard before the regular district judge and thereafter the three-judge court did not participate. The decree, after reciting that the plaintiffs had expressly abandoned all claim to injunctive relief as prayed for in their bill, held that the bill did not state a cause of action in equity and dismissed it for lack of equity. The ruling was based on the propositions that the bill merely sought redress for the deprivation of purely political rights which equity would not interfere to protect, and that the bill did not set forth an actual controversy within the terms of the Federal Declaratory Judgment Act, section 274d of the Judicial Code, 28 U.S.C.A. § 400. From that decree this appeal is prosecuted, and appellants now state their action to be for the recovery of money damages for being wrongfully deprived by appellees of their right to vote for the nominees above referred to.

Appellants contend that the court erred in the following particulars: In not holding that the plaintiffs' right to vote for the offices named was a civil right which the court was required to protect in equity; in refusing to hold that the Statutes of Illinois under which the order of the State officers of the Electoral Board was entered were in violation of the Federal Constitution; in not holding that appellants were entitled to maintain a class suit in equity to recover damages for the deprivation of appellants' right to vote for the candidates of their choice; in not holding that the action of the Electoral Board was void because it had no jurisdiction of the persons of the Communist candidates, nor of the subject matter of the nominating petition; and in not holding that the bill presented an actual controversy within the meaning of the Declaratory Judgment Act.

The ruling of the Supreme Court limited the subsequent action of the District Court to those issues remaining in the bill other than the relief sought by injunction, and appellants by their brief concede that the only relief now sought is for money damages.

Uncertainty exists as to the proper construction of the Supreme Court's ruling in this case. In Duke Power Co. v. Greenwood County, 299 U.S. 259, 57 S.Ct. 202, 205, 81 L.Ed. 178, the Court said: "Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss. * * * If it appears that supervening facts require a retrial in the light of a changed situation, the appropriate action of the appellate court is to vacate the decree which has been entered and revest the court below with jurisdiction of the cause to the end that issues may be properly framed and the retrial had." It is obvious that the Supreme Court in the Blackman Case followed the latter clause of this rule, and appellants urge that it must be inferred that the Supreme Court thought and indicated that there was merit in appellants' demand for damages, because otherwise there would have been an order of dismissal. True, there were other issues presented, aside from injunctive relief, which the three-judge court did not pass upon specifically, but generally it held there could be no right of recovery because all the rights sought to be vindicated and protected were political rather than civil, and that equity would not assume jurisdiction over them. This ruling seems to us to have passed on all the issues notwithstanding the fact that those based on injunctive relief afterwards became moot. At the last hearing the same ruling was made by the District Court for practically the same reasons, and without indulging in the inference suggested we think a correct result was reached.

If appellants were entitled to recover damages for the acts complained of, under section 1979 of the Revised Statutes, 8 U. S.C.A. § 43, it must be because the Illinois Election laws violate the Federal Constitution. If they are impervious to the constitutional attacks here made against them, it is clear that appellants have suffered no damages for which they can recover, because the acts complained of are purely administrative acts for which the officers, if they complied with the laws involved, cannot be held to respond in damages.

Even if we assume for the purposes of this case that the right to vote for Federal officers, and to participate in all other related matters such as nomination of candidates, and having their names printed on the ballots, are civil rights guaranteed by the Federal Constitution, U.S.C.A., under article 1, section...