Davis v. Schnell

• Decision Date: 07 January 1949
• Docket Number: Civil Action No. 758.
• Citation: 81 F. Supp. 872
• Parties: DAVIS et al. v. SCHNELL et al.
• Court: U.S. District Court — Southern District of Alabama

81 F. Supp. 872

DAVIS et al. v. SCHNELL et al.

Civil Action No. 758.

United States District Court S. D. Alabama, S. D.

January 7, 1949.

David R. Landau and George N. Leighton, both of Chicago, Ill., for plaintiffs.

A. A. Carmichael, Atty. Gen. of Alabama, Silas C. Garrett III, Asst. Atty. Gen. of Alabama, E. C. Boswell, of Geneva, Ala., Ira B. Thompson, of Montgomery, Ala., Kenneth Griffith, of Cullman, Ala., and Carl M. Booth, Circuit Sol., of Mobile, Ala., for defendants.

Before McCORD, Circuit Judge, MULLINS and McDUFFIE, District Judges.

MULLINS, District Judge.

This case was tried before a duly constituted three-judge District Court.

Under the amended complaint, this suit is brought by ten Negro citizens of Mobile County, Alabama, against the Board of Registrars of said County and the individual members thereof, to declare and secure their rights to register as electors. The plaintiffs bring the action on their own behalf, and on behalf of all Alabama citizens similarly situated.

The plaintiffs allege that registration is a prerequisite of the right of a citizen of Alabama to vote in any election, Federal, State or local.¹

The plaintiffs allege that at a general election held on November 7, 1946, there was submitted to and adopted by the people of Alabama an amendment to Section 181 of the Constitution of Alabama (popularly called and referred to herein as the Boswell Amendment), changing the requirements for registration of electors so that only those persons who can "understand and explain" any article of the Federal Constitution can be registered as electors.² They allege that this amendment was purposely sponsored, its adoption obtained, and its provisions are being administered so as to prevent the plaintiffs and others, because of their race, from exercising their right to vote.

The plaintiffs aver that they appeared before the defendants, members of the Board of Registrars for Mobile County, Alabama, and, acting under color of law, the defendants required the plaintiffs, all members of the Negro race, to explain an article of the Federal Constitution, which they did, and the defendants informed them that the defendants were not satisfied with the explanations given, and refused to register them.

It is further averred that said Section 181, as amended, requiring applicants for registration to "understand and explain" any article of the United States Constitution, together with the provisions of Title 17, Section 33, Code of Alabama 1940,³ vests in the Board of Registrars unlimited discretion to grant or deny the plaintiffs and others similarly situated the right to register as electors; that said Amendment provides no definite, reasonable or recognizable standard or test to be applied in determining the qualifications of electors; that defendants refused to register plaintiffs and other qualified Negro applicants, while at the same time defendants were registering white applicants with less qualifications; that plaintiffs, solely because of their race and color, were required to make lengthy explanations of articles of the Constitution of the United States, while white applicants were being registered without being required to make any such explanations.

Plaintiffs further allege that they possess all of the qualifications and have none of the disqualifications to register as electors, except that they are unable to comply with or reasonably satisfy the defendants that they can comply with the requirements of the Boswell Amendment, which requirements they aver are void in that they are vague, uncertain, undefined, and provide no discernible standard; that said Amendment, without mentioning either race or color, was adopted for the purpose and with the intent of the proponents thereof to create a scheme to prevent qualified Negroes from voting; that the qualification to "understand and explain" any article of the Constitution is a mere subterfuge designed for the purpose of depriving plaintiffs and others of the right of franchise on account of race or color; that it has become the general and habitual practice of the defendants, acting under color of law, to refuse to register Negro residents of said county, including the plaintiffs, on the pretext that they are unable to "understand and explain" any article of the Federal Constitution. The plaintiffs further allege that they have been denied the right to register as electors solely on account of their race or color.

The plaintiffs aver that an actual controversy exists between the plaintiffs and the defendants within the meaning of Title 28, Section 400, United States Code (now Section 2201 of Revised Title 28, United States Code), in that the plaintiffs contend that Section 181 of the Constitution of Alabama, as amended, is unconstitutional on its face and because of the manner in which it is administered, as being violative of the provisions of the Fourteenth and Fifteenth Amendments and other provisions of the Constitution of the United States while the defendants contend that said Boswell Amendment is constitutional both on its face and in the manner in which it is administered.

Plaintiffs seek a declaratory judgment declaring the Boswell Amendment unconstitutional and ask for injunctive relief against the further enforcement of the provisions of the same. Plaintiffs waived their prayer for damages.

The defendant board and two of the individual members thereof answered the complaint. They deny that the Boswell Amendment is unconstitutional and deny that they administer the registration laws differently as to white and Negro applicants, and aver that they administer the laws fairly to all applicants for registration, without regard to race or color. They admit that the individual defendants compose the Board of Registrars of Mobile County; they admit that at least three of the plaintiffs, Hunter Davis, Julius B. Cook, and Russell Gaskins, applied to the board for registration and were rejected; they aver that the records of the board do not disclose that any of the other plaintiffs ever applied to them for registration, and deny that any application for registration has ever been refused on account of race or color. They admit, and the Court finds, that an actual controversy exists between the plaintiffs and the defendants and that the contentions of the parties with reference thereto are substantially stated in the amended complaint.

E. J. Gonzales, the third member of the defendant board, declined to join in the answer filed by the other defendants, stating that he could not join in all of the denials contained in their answer. He filed no formal answer, but testified and represented himself on the trial of the case.

Only two of the plaintiffs, Hunter Davis and Julius B. Cook, testified on the trial. From the evidence we find that these two plaintiffs presented themselves to the defendant board seeking to register as electors and that they presented satisfactory evidence of their qualifications to register as electors, but their applications were denied. The evidence shows they had the residential qualifications prescribed by Section 178 of the Constitution of Alabama, having continuously resided in the State of Alabama, in the County of Mobile, and in the precinct or ward where they lived for more than two years immediately preceding the time when they applied for registration; that they were over the age of twenty-one years, and had been regularly engaged in lawful employment, business or occupation for the greater part of the twelve months next preceding the time at which they offered to register; that they are citizens of Alabama and of the United States, of good character, and possess all other qualifications of electors, unless it be said that they can be required to "understand and explain" any article of the United States Constitution to the reasonable satisfaction of the members of the defendant board. These two plaintiffs have none of the disqualifications set out in Section 182 of the Alabama Constitution.

We further find from the evidence that prior to the filing of this suit said Board of Registrars required Negro applicants for registration as electors in Mobile County to attempt to explain at least some article of the United States Constitution, while no such requirement was exacted of white applicants. We also find that the plaintiffs Davis and Cook were refused registration as electors because of their race or color.

Prior to this suit defendant board did not keep records of rejected applicants, whether white or Negro. The members of said board went into office in October, 1947. Registration records of said board, which were not disputed, were introduced showing that during their tenure, prior to March 1, 1948 (the filing date of this suit), 39 colored applicants were registered; that subsequent to March 1, 1948, 65 colored applicants were registered and 57 were rejected, the records of these 57 rejected applicants showing, in substance, that they were rejected because they could not "understand and explain" an article of the Federal Constitution. These records show that three white persons who were registered after this action was filed were asked to explain a provision of the Federal Constitution. The records of 11 rejected white applicants show that they were denied registration on grounds other than the requirements of the Boswell Amendment. The defendants offered nine colored witnesses, all of whom with one exception were public school teachers of good education, who testified that they were registered by the defendant board, some of them being asked if they could explain provisions of the Federal Constitution. The members of the defendant board generally required Negro applicants to explain or interpret provisions of the Federal Constitution, and did not generally require white applicants to do so.

The evidence shows that during the incumbency of the defendant board that more than 2800 white...