Cox v. Peters

• Decision Date: 13 November 1951
• Docket Number: No. 17626,17626
• Citation: 67 S.E.2d 579,208 Ga. 498
• Parties: COX v. PETERS et al.
• Court: Georgia Supreme Court

Page 579

67 S.E.2d 579

208 Ga. 498

COX v. PETERS et al.

No. 17626.

Supreme Court of Georgia.

Nov. 13, 1951.

Syllabus by the Court.

A party primary held under the provisions of Code, § 34-3212 merely chooses candidates or nominees of a political party to be submitted to the entire electorate in the general election, and is not an 'election' within the meaning of that term as used in the statutory and constitutional provisions of Georgia conferring upon its citizens the right to vote in an election; and the right to participate in such a primary does not come within the protection of the Fourteenth and Fifteenth Amendments to the Federal Constitution.

W. M. Cox filed his petition against James S. Peters and Mrs. Iris Blitch, wherein he alleged: that, at the time of the 1950 Democratic primary in Georgia, he was a citizen of the State of Georgia and of the United States, not laboring under any of the disabilities named in article 2 of the Constitution of Georgia, and possessing the qualifications provided by that article of the Constitution, and was a resident of Cherokee County, Georgia, duly qualified to register and vote, and that he did vote in that primary for a candidate for the nomination for Governor, namely, M. E. Thompson; that the defendant Peters held the official position of Chairman, and the defendant Blitch held the official position of Secretary, of the State Executive Committee of the Democratic Party in Georgia; and that, in the 1950 primary, acting in said official positions, the defendants applied the county unit system, as defined by Code, § 34-3212, in certifying the results of the primary, as required by Ga. Laws 1949, p. 967, § 3, Code Ann.Supp. § 34-3218.3. It is alleged that the vote in Cherokee County for the nomination for Governor was 1830 votes for Herman Talmadge, and 1537 votes for M. E. Thompson; that the defendants owed to the plaintiff a duty to count his vote for the candidate for whom it was cast at its full value, but that the defendants, by applying the county unit system in certifying the results of the election, allotted to each vote in Georgia at large 1.2 times the value of one vote in Cherokee County, and a different or greater value in various other counties, and that by applying the county unit system to the vote in Cherokee County, the defendants did not count any part of the unit vote of that county in favor of Thompson, the candidate for whom the plaintiff voted, but instead counted the whole vote of Cherokee County in favor of Talmadge, thereby reversing the vote of the plaintiff and of every other voter in Cherokee County who voted for Thompson; and there is set out in the petition the mathematical calculation by which these conclusions are reached. It is also alleged that, by applying the county unit system in certifying the returns of the election, the defendants discriminated against the plaintiff as a white voter by allotting to each negro vote in certain counties a greater portion of a unit vote than to the plaintiff or to the average voter in Georgia.

It is alleged that the defendants have thus denied and abridged the plaintiff's right to vote and deprived him of the 'equal protection of the laws', contrary to section 1 of the Fourteenth Amendment to the Constitution of the United States, Code, § 1-815, and have denied and abridged the plaintiff's right to vote on account of his race and color, contrary to the Fifteenth Amendment to the Constitution of the United States. Code, § 1-820.

It is further alleged that these acts of the defendants were done 'under color of' the State's county unit statute, in violation of R.S. § 1979, 8 U.S.C.A. § 43, which provides that 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'

It is further alleged that the actions of the defendants in applying the county unit system were illegal, and have damaged the plaintiff by failing to protect him in the 'full enjoyment of the rights, privileges and immunities' due to citizens of this State, as required by paragraph 25, section 1, article 1 of the Constitution of Georgia, Code Annotated, § 2-125, in that he has been deprived:

(1) Of his right to vote at all elections in this State under paragraph 4, section 1, article 2, of the Constitution of Georgia, Code Ann. § 2-704;

(2) Of his right to vote at 'any election by the people' under paragraph 2, section 1, article 2 of the Constitution of Georgia, Code Ann. § 2-702;

(3) Of the right to 'originate' his government under paragraph 1, section 1, article 1 of the Constitution of Georgia, Code Ann. § 2-101;

(4) Of his right 'to regulate' his government under paragraph 2, section 5, article 1 of the Constitution of Georgia, Code Ann. § 2-502, which allegation evidently intended to refer to the preceding paragraph of the Constitution;

(5) Of his right to elect 'by ballot' under paragraph 1, section 1, article 2, of the Constitution of Georgia, Code Ann. § 2-701.

It is further alleged that the county unit statute violates article 1, section 4, paragraph 1 of the Constitution, Code Ann. § 2-401, which provides against varying a general law by special legislation, and article 2, section 1, paragraphs 8 and 9, of the Constitution of 1877, Code, §§ 2-608, 2-609, relating to qualifications to vote in a primary of a political party (both of which latter provisions are stricken from the Constitution of 1945); and that, in applying the county unit system, the defendants treated each county as a sovereign unit for the purpose of counting its vote, contrary to the provisions declaring counties to be merely 'political subdivisions,' including paragraph 2, section 7, article 7 of the Constitution of Georgia, Code, Ann. § 2-6002.

An amendment to the petition was offered and allowed, subject to demurrer and objection, which amplified the allegations of the original petition as to the constitutional provisions alleged to be violated by the defendants in the application of the county unit system.

The plaintiff alleges that, by reason of the application of the county unit system, his vote has been devalued and reversed, as alleged in the petition; that he has been deprived of the right to vote in the primary, and to have his vote counted at its full value for the candidate for whom it was cast; and he seeks to recover damages for the alleged deprivation of these rights.

The amendment to the petition was stricken on objection by counsel for the defendants, and a general demurrer to the petition sustained, and to these judgments the plaintiff excepts.

C. Baxter Jones, Jr., Atlanta, Myer Goldberg, Newnan, Raymond Reed, Marietta, John E. Griffin, Athens, for plaintiff in error.

Eugene Cook, Atty Gen. M. H. Blackshear, Jr., Deputy Asst. Atty. Gen., Edward E. Dorsey, B. D. Murphy and M. F. Goldstein, all of Atlanta, G. C. Thompson, H. B. Black, Jr., both of Manchester, for defendants in error.

HAWKINS, Justice. (After stating the foregoing facts.)

If we should endeavor to follow out the labyrinthine paths taken by the arguments of able counsel for the respective parties, both orally and by brief, and should take up and discuss the various philosophies of government presented thereby, together with the arguments predicated thereon, and the many authorities cited in the exhaustive briefs, and if it were necessary to discuss in detail the history and the merits and demerits of the county unit system, it would not be surprising if the court should lose sight of the fact that what we have presented is simply a suit for damages, of which this court has jurisdiction because the construction of certain provisions of the Federal and State Constitutions is involved, and because the constitutionality of a statute of this State is drawn in question. Article 6, section 2, paragraph 4 of the Constitution of Georgia, Code Ann. § 2-3704. The plaintiff alleges that he has been damaged, and is seeking to recover money damages from the defendants because they, as chairman and secretary, respectively, of the Democratic Executive Committee of Georgia, in the performance of their official duties, made a certain certificate as to who was the nominee of the Democratic party for Governor of the State of Georgia in the Democratic Primary of 1950, whereby the plaintiff's vote was diluted, devalued, and reversed, because the certification was made upon the county unit basis under the provisions of Code, § 34-3212, commonly referred to as the Neill Primary Law. Counsel for the plaintiff very frankly stated in their brief that 'essentially all of the different constitutional violations alleged are aimed at one point--to invalidate the county unit statute and therefore the county unit system;' it being the contention of the plaintiff that, if this statute be invalid for any one or more of the reasons alleged, the conduct of the defendants was to him a single wrong on which he is entitled to bring a single suit.

The right to vote for Governor in a Democratic primary does not arise under the Constitution or laws of the United States. See, in this connection, Minor v. Happersett, 21 Wall. 162, 88 U.S. 162, 22 L.Ed. 627; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869; Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340; Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252; Snowden v. Highes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497.

It is contended by the plaintiff, however, that the right to vote in such a primary does arise under the Constitution and laws of the State of Georgia,...