Blackman v. Stone, 2238.

• Decision Date: 22 October 1936
• Docket Number: No. 2238.,2238.
• Citation: 17 F. Supp. 102
• Parties: BLACKMAN et al. v. STONE et al.
• Court: U.S. District Court — Southern District of Illinois

17 F. Supp. 102

BLACKMAN et al. v. STONE et al.^*

No. 2238.

District Court, S. D. Illinois, S. D.

October 22, 1936.

Hart E. Baker and David J. Bentall, both of Chicago, Ill., for plaintiffs.

Otto Kerner, Atty. Gen., for defendants.

Before EVANS, Circuit Judge, and BARNES and MAJOR, District Judges.

PER CURIAM.

Plaintiffs, on behalf of themselves and others similarly situated, have brought this suit to enjoin one Ray D. Stout, individually and as County Clerk of the County of Sangamon, Mike Godfrey, and five or six others, individually and as County Clerks of different Illinois counties, from printing the ballots for the election of November 3, 1936, without including thereon the names of the candidates designated in a certain petition hereinafter more fully described, or if said ballots have already been printed, that each of said clerks be restrained from distributing said ballots without "including thereon, by printing thereon or affixing thereto by paster, the names of candidates" named in said petition.

Plaintiffs also seek a mandatory injunction against Edward J. Hughes, individually and as Secretary of State of Illinois, Edward J. Barrett, individually and as Auditor of Public Accounts, and Henry Horner, individually and as Governor of Illinois, directing them to certify to the respective county clerks of the State of Illinois, the names of the candidates named in said petition.

Petitioners further ask that the decision and order of Clyde E. Stone, Warren H. Orr, and Norman L. Jones, Justices of the Supreme Court of the State of Illinois, sitting as state officers of the State of Illinois, be declared void and of no effect, because without jurisdiction to pass upon the sufficiency of said nominating petition.

Further relief along the same line was sought, the basis thereof being set forth in a lengthy complaint, the substance of which is that the plaintiffs and others are citizens of the United States, over twenty-one years of age, and residents of the State of Illinois for more than one year; that each is a duly qualified and registered voter of said state and that they are 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 representing the Communist Party) placed on the election ballot so that said plaintiffs and others might vote for them at the November election. They assert that their names have been wrongfully kept from said ballot, and, if we narrow the statement of facts to the fundamental basic questions, it appears that a petition containing over 25,000 names was filed with the Secretary of State asking that certain individuals named thereon be placed on the ballot as Communist candidates for State and Federal offices; that the plaintiffs represented more than fifty counties and that over 200 such signatures represented electors of each of fifty different counties; that upon the filing of this petition, an objection, or at least a so-called protest, was filed with the Secretary of State against the certification of said Communist Party on the ballot. The Secretary of State then sent a copy of said protest or objection by registered mail to plaintiffs and at the same time sent a notice of hearing of the Board on September 25, 1936. On said date, the Secretary of State, the State Auditor, and the Attorney General, as statutory members of the State Officers Electoral Board, met in the offices of the Secretary of State, and at said meeting the candidates of the Communist Party appeared and made what they call a special appearance, and objected to said officers acting on said Board for the reason that they were candidates for election. The said officers on the same day withdrew from, or declined to act as, said Board. On September 26th, the defendants, Stone, Orr, and Jones, each being a member of the Supreme Court of the State of Illinois, and the three being the oldest in point of service on said Supreme Court, declared themselves to be the State Electoral Board, and proceeded to hear the objections (whether they were sufficient to be called objections is challenged) of one Matthew J. Murphy to the petition of the plaintiffs.

At said meeting the candidates made a limited appearance and objected to the jurisdiction of the three justices of the Supreme Court to pass upon the so-called objections. The three justices held that they had jurisdiction and would hear the objections and they determined that the petition was insufficient.

Without going into details, it is sufficient to say that the basis of the justices' finding was that some of the voters were not qualified to sign the petition 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. Section 5½ of the Illinois Australian Ballot Law (Smith-Hurd Ill.Stats. c. 46, § 293) contains the following provision:

"Provided, further, that any person who has already voted at a primary election held to nominate a candidate or candidates for any office or offices, to be voted upon at any certain election, shall not be qualified to sign a petition of nomination for a candidate or candidates for the same office or offices, to be voted upon at the same certain election."

Defendants have raised a legal question which for convenience sake is stated thus: May a court of equity grant the relief here sought?

Plaintiffs assert an affirmative answer to this question should be given for several reasons: Avoidance of a multiplicity of suits, the inadequacy of any remedy in an action at law, and the protection of rights accorded plaintiffs by the Federal Constitution.

Defendants argue that the question must be answered in the negative because (a) the rights sought to be vindicated and protected are political rather than civil rights, and (b) courts of equity, both state and Federal, have uniformly refused to take jurisdiction of suits to protect or vindicate political rights.

A study of the authorities leaves us in no doubt as to the soundness of the defendants' second proposition, viz., that courts of equity do not assume jurisdiction of suits to protect invaded political rights.

In Ruling Case Law, volume 10, page 342, we find the following statement:

"Matters of a political character are also outside the pale of a court of equity, no such jurisdiction having ever been conceded to a chancery court, either in a federal or state judiciary, unless it is so provided expressly or impliedly by organic or statute laws. The political rights of a citizen are as sacred as are his rights to personal liberty or property, but he must go to a court of law for them. A court of equity is a one-man power, wielding the strong force of injunction, often issued at chambers, and on an ex parte hearing. Neither in England nor America has this power been suffered to extend to political affairs."

In the famous case of Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 642, 47 L.Ed. 909, the Supreme Court said:

"The traditional limits of proceedings in equity have not embraced a remedy for political wrongs. * * *

"The other difficulty is of a different sort, and strikingly reinforces the argument that equity cannot undertake now, any more than it has in the past, to enforce political rights, and also the suggestion that state constitutions were not left unmentioned in section 1979 8 U.S. C.A. § 43 by accident. In determining whether a court of equity can take jurisdiction, one of the first questions is what it can do to enforce any order that it may make. This is alleged to be the conspiracy of a State, although the State is not and could not be made a party to the bill. * * * The circuit court has no constitutional power to control its action by any direct means. And if we leave the State out of consideration, the court has as little practical power to deal with the people of the State in a body. The bill imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff's name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that State by officers of the court, it seems to us that all the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States."

In Green v. Mills (C.C.A.) 69 F. 852, 857, 30 L.R.A. 90, a decision approvingly cited by the Supreme Court in Giles v. Harris, the court said:

"It is well settled that a court of chancery is conversant only with matters of property and the maintenance of civil rights. The court has no jurisdiction in matters of a political nature, nor to interfere with the duties of any department of government, unless under special circumstances, and when necessary to the protection of rights of property, nor in matters merely criminal, or merely immoral, which do not affect any right of property. * * *

"`On this branch of the inquiry, it seems to the court very clear that a court of equity cannot be invoked to prevent the performance of political duties like those committed to the officers of registration under the law. The willful, fraudulent, or corrupt refusal of a vote by judges of election, or a like denial of registration by the officer appointed to register votes, which is the same thing, can be adequately compensated for in damages at law. Bevard v. Hoffman, 18 Md. 479 484 81 Am.Dec. 618. The writ of injunction will not be awarded in doubtful or new cases not...