Grigsby v. Harris

• Decision Date: 23 July 1928
• Docket Number: No. 353.,353.
• Citation: 27 F.2d 942
• Parties: GRIGSBY et al. v. HARRIS et al.
• Court: U.S. District Court — Southern District of Texas

27 F.2d 942 (1928)

GRIGSBY et al. v. HARRIS et al.

No. 353.

District Court, S. D. Texas, at Houston.

July 23, 1928.

R. D. Evans, of Waco, Tex., for plaintiffs.

Stevens & Stevens, of Houston, Tex., for defendants.

HUTCHESON, District Judge.

Plaintiffs, alleging themselves to be resident citizens of Harris county, Texas, and of the United States, qualified voters under the election laws of the state of Texas and of the Democratic political faith, bring their petition for injunction against defendants, members of the Democratic executive committee of Harris county, Texas. They allege that the state Democratic executive committee by resolution has provided that only qualified white voters may participate in the Democratic primary election, and that in doing so the committee "acted under color of a state statute which in itself does not authorize such resolution"; that plaintiffs are not white, and that the enforcement of such rule, which plaintiffs allege defendants are preparing to carry out, will deprive them of a constitutional right and privilege guaranteed to them by the Fourteenth and Fifteenth Amendments to the Constitution of the United States, to wit, the right to vote without discrimination against them on account of color, to plaintiffs' irreparable injury, and for which they have no adequate remedy at law.

Plaintiffs praying for a temporary restraining order, a rule issued to show cause why the writ prayed for should not be granted, and, defendants having appeared, the matter stands for disposition upon their motion to dismiss for want of equity and upon the facts admitted by defendants and those adduced by plaintiffs in support of their prayer.

Defendants' answer to the rule filed subject to their motion to dismiss puts plaintiffs upon proof as to their being qualified voters, and denies that they are Democrats; but it admits that the state executive committee did pass, and the defendants are preparing to enforce, the following resolution:

"That all white Democrats who are qualified voters under the Constitution and laws of Texas, and who subscribe to the statutory pledge provided in article 3110, Revised Civil Statutes of Texas, and none other, be allowed to participate in the primary elections to be held July 28, 1928, and August 25, 1928, and further that the chairman and secretary of the state Democratic executive committee be directed to forward to each Democratic county chairman in Texas a copy of this resolution for observance."

Plaintiffs established that they were qualified voters in Harris county, Texas; that they desired to affiliate with the Democratic party, and that they would do so, but for the resolution and actions of the defendants above set out — in short, all of the material allegations of their petition, and the matter stands for decision by me upon the points of law: (1) Whether the action of the state executive committee of the Democratic party, and of the defendants pursuant to it, is obnoxious to the invoked amendments. (2) If it is, can equity relieve?

Plaintiffs on the first point say: "The statute law of Texas has covered the subject of primary elections, and has removed the control of same from the forum of political parties and placed it within the control of the state by express legislation"; that the executive committee of the Democratic party is in effect recognized by and acting as the agent of the state, and that therefore, "so far as the Fourteenth and Fifteenth Amendments to the Constitution of the United States are concerned, as these amendments have been construed by the Supreme Court of the United States, the action of the state executive committee and the county chairman and the precinct chairman is state action."

They say that the legislative intent to make the test of Democratic party affiliation a matter of state rather than party action is evidenced by the enactment in May, 1923, at the second called session of the Thirty-Eighth Legislature of a law then designated article 3093a, reading as follows: "Article 3093a. All qualified voters under the laws and Constitution of the state of Texas, who are bona fide members of the Democratic party, shall be eligible to participate in any Democratic party primary election, provided such voter complies with all laws and rules governing party primary elections; however, in no event shall a negro be eligible to participate in a Democratic party primary election held in the state of Texas, and should a negro vote in a Democratic primary election, such ballot shall be void and election officials are herein directed to throw out such ballot and not count the same" — and later by the enactment in June, 1927, of an act repealing same and enacting new article 3107, reading as follows: "Article 3107. Every political party in this state through the state executive committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party: Provided that no person shall ever be denied the right to participate in a primary in this state because of former political views or affiliations or because of membership or nonmembership in organizations other than the political party."

They say that, while the present article does not in terms effect or authorize the effecting of the discrimination against plaintiffs here complained of, the declaration that the executive committee shall have power to prescribe qualifications, taken in connection with the assertion in the very article of legislative control over party qualifications in at least two particulars, amounts not to a recognition of power already existing in the party committee as such to so designate, but to a delegation by the Legislature of its own power of designation.

The defendants say that the second statute evidences, not as plaintiffs contend, a continuity of purpose on the part of the Legislature to continue a meretricious union of the state with the Democratic party, attempted by those who were responsible for the first act, but, on the contrary, a return to legal sanity by an entire withdrawal of the state from a usurped field. They say that article 3093a, in terms depriving a citizen of the right to vote in a Democratice primary because of his color was not only violative of the Fourteenth and Fifteenth Amendments, and therefore void ab initio, but also contrary to the public policy of this state, as it placed the state of Texas in the apparent position of having loaned its governmental machinery to a particular party, a position not only repugnant to every upright, law-abiding citizen of Texas, irrespective of party, but which was in the very teeth of the decision of its Supreme Court; that in Waples v. Marrast, 108 Tex. 11, 184 S. W. 183, L. R. A. 1917A, 253, that court, speaking through Chief Justice Phillips, according to the "straitest sect" a Democrat, in a case denying the right of a state to finance a primary election, declared:

"A political party is nothing more or less than a body of men associated for the purpose of furnishing and maintaining the prevalence of certain political principles or...