Darby v. Daniel, Civ. A. 2748.

• Decision Date: 06 November 1958
• Docket Number: Civ. A. 2748.
• Citation: 168 F. Supp. 170
• Parties: H. D. DARBY, on behalf of himself and others similarly situated, Plaintiffs, v. James DANIEL, Circuit Clerk of Jefferson Davis County, Mississippi, and Joe T. Patterson, Attorney General of the State of Mississippi, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

168 F. Supp. 170

H. D. DARBY, on behalf of himself and others similarly situated, Plaintiffs, v. James DANIEL, Circuit Clerk of Jefferson Davis County, Mississippi, and Joe T. Patterson, Attorney General of the State of Mississippi, Defendants.

Civ. A. 2748.

United States District Court S. D. Mississippi, Jackson Division.

November 6, 1958.

COPYRIGHT MATERIAL OMITTED

R. Jess Brown, Vicksburg, Miss., Robt. L. Carter, New York City, Constance B. Motley and Thurgood Marshall, New York City, for plaintiffs.

R. G. Livingston, Prentiss, Miss., Joe T. Patterson, Atty. Gen., and Dugas Shands and John H. Price, Jr., Assts. to the Atty. Gen., for defendants.

Before CAMERON, Circuit Judge, and MIZE and CLAYTON, District Judges.

CAMERON, Circuit Judge.

The case before us, with some of the facts, is thus stated in plaintiff's brief: "This is an action for a declaratory judgment and injunction brought by plaintiff on behalf of himself and others similarly situated. The gravamen of plaintiff's complaint is that he and other Negro citizens of Jefferson Davis County, Mississippi have been denied the right to register in order that they might vote, solely because of their race and color, through the enforcement of a policy of discrimination against Negro voters, the enforcement of unconstitutional voting requirements, and the discriminatory administration of valid requirements. The plaintiff also seeks to enjoin enforcement of a state statute which makes it a crime, punishable by imprisonment for one year, for him to accept financial and legal assistance in the prosecution of this action and for his attorneys and others to give such assistance."

"The plaintiff in this case is an adult Negro citizen of the United States and of the State of Mississippi, residing in Prentiss, Jefferson Davis County, Mississippi, since 1947. He is not an idiot, an insane person, or an Indian who is not taxed, and is more than twenty-one years of age. His occupation is that of a minister of the Gospel. He has never been convicted of any crime enumerated in the Mississippi Constitution as grounds for disqualification as a voter. He has paid his poll tax for the years 1956 and 1957. He was a duly qualified and registered voter of Jefferson Davis County prior to January 1, 1954, and exercised his right to vote in various elections held in the county between 1950 and 1955, having registered for the first time in the early part of 1950.

"In 1954 the Legislature of the State of Mississippi proposed that Section 244 of the Mississippi Constitution of 1890 be amended, and after the proposed amendment was ratified by a vote of the electorate, it became law in 1955." Defendant Daniels was and is Circuit Clerk and Registrar of Jefferson Davis County and will be referred to as defendant unless otherwise noted.

The qualifications of Electors are set forth in Article 12 of the Mississippi Constitution of 1890 as amended, titled "Franchise," and the article embraces Sections 240-253, inclusive.

The Sections of the Article, other than Section 244 which is challenged by plaintiff, grant the right to vote to inhabitants of the state, except idiots, insane persons and Indians not taxed, who are citizens of the United States, twenty-one years old or over, with certain residence requirements, who have duly registered as provided in the article and who have never been convicted of certain listed crimes and who have paid all poll taxes legally required of them before February 1st of the year in which they offer to vote. Section 249 provides: "And registration under the Constitution and laws of this state by the proper officers of this state is hereby declared to be an essential and necessary qualification to vote at any and all elections."

Section 244 of Article 12, prior to the amendment attacked, was in these words:

"Section 244. On and after the first day of January, A.D. 1892, every elector shall, in addition to the foregoing qualifications, be able to read any section of the Constitution of this state; or he shall be able to understand the same when read to him, or give a reasonable interpretation thereof. A new registration shall be made before the next ensuing election after January the first, A.D. 1892."

Amended Section 244¹ reads as follows in its pertinent portions:

"Section 244. Every elector shall, in addition to the foregoing qualifications be able to read and write any section of the Constitution of this State and give a reasonable interpretation thereof to the county registrar. He shall demonstrate to the county registrar a reasonable understanding of the duties and obligations of citizenship under a constitutional form of government."

Following the quoted language the amended section goes on to provide that a person applying to register shall make a sworn written application on a form to be prescribed by the State Board of Election Commissioners, and concludes with these words:

"Any new or additional qualifications herein imposed shall not be required of any person who was a duly registered and qualified elector of this state prior to January 1, 1954. The Legislature shall have the power to enforce the provisions of this section by appropriate legislation."

In February, 1956 the Board of Supervisors of Jefferson Davis County ordered a new registration and due notice thereof was given by publication as required by law. This new registration was in line with the practice which had been followed in the county for a number of years, new registrations having been had in the years 1906, 1923, 1934 and 1949.

Defendant Daniel first became Circuit Clerk and Registrar of Jefferson Davis County January 1, 1956. Without dispute and based upon his opinion that, since a new registration had been ordered and forms had been sent to him by the State Election Commissioners, he was so obligated, he began the practice of requiring all applicants, regardless of color, to take the examination provided by the amendment and covered by the questionnaire, which policy he pursued until about October 15, 1956. Plaintiff Darby first entered his office to register on June 29, 1956, and defendant Daniel handed him the questionnaire to be completed pursuant to the custom then universally followed by him. No discussion was had between plaintiff and defendant. Plaintiff completed a part of the written examination and signed his name and left.

He had consulted the attorney now representing him and had written a letter of complaint to the President of the United States some weeks before that, which resulted in an investigation of defendant Daniel being made by the Federal Bureau of Investigation. About October 1, 1956 defendant Daniel received a letter from the United States Attorney in Jackson, Mississippi requesting that Daniel come to his office for conference. He responded to the request, going in company with the county attorney to the office of the United States Attorney. There he was advised that the Department of Justice took the position that persons who, like plaintiff Darby, had been registered prior to January 1, 1954 were required to take only the oral examination covering the qualifications as set forth in the original Section 244 of Article 12 of the Mississippi Constitution. Daniel left the United States Attorney and went to the Attorney General of Mississippi, who advised him in writing October 12, 1956, that no person registered prior to January 1, 1954 was required to take the written examination provided by the amendment. Thereafter, Daniel pursued the policy of giving all applicants of Darby's class the option to take the oral examination provided by the original section or the written examination provided by the amendment.

About November 2, 1956 plaintiff Darby again presented himself for registration and was given the oral examination. He did not pass in the opinion of Daniel and was so advised. Neither Darby nor Daniel remembered what section of the Constitution Darby was called upon to interpret. About June 8, 1957, Darby came to Daniel's office again to register and was given the oral examination, and again failed to pass. A short time thereafter the F. B. I. made a further examination into Daniel's operation of his office in which Daniel explained freely what happened.

On June 22, 1957, plaintiff Darby again presented himself to defendant Daniel, this time requesting that he be given the written examination as provided by the amendment. Without dispute, plaintiff followed this course on the advice of his attorney, whom he had first consulted more than a year before. He was given the written examination on the forms furnished to Daniel by the state officials, and again Daniel ruled that he had not qualified for registration.²

Plaintiff Darby appealed, as provided by law, from the ruling of defendant Daniel rejecting his written application (he had not appealed from the other three rejections), and the evidence shows that in so doing he was guided by one of his attorneys of record who had been employed by the N.A.A.C.P. Legal Defense and Educational Fund. His attorney filed with the Registrar a writing bearing the heading "Appellant's Contentions."³ Plaintiff Darby and his attorney appeared at the office of Daniel on October 7, 1957, but there was no meeting of the Commissioners scheduled or held at that time.⁴ Said plaintiff and his attorney were advised that the Commissioners would meet at the Registrar's office on the Tuesday after the third Monday in March, 1958; plaintiff Darby testified that Daniel told them of a March meeting. No provision is made for notice to persons desiring to present contests of the actions of the Registrar and we do not find that defendant Daniel made any agreement to give any notice to plaintiff or that such an agreement, if made, would have any legal effect. The appeal, apparently begun as a test of the provisions of the Constitution and Statutes here under attack, was not prosecuted, but this civil action...