Joyner v. Browning, 98.

• Decision Date: 09 August 1939
• Docket Number: No. 98.,98.
• Citation: 30 F. Supp. 512
• Parties: JOYNER et al. v. BROWNING et al.
• Court: U.S. District Court — Western District of Tennessee

30 F. Supp. 512

JOYNER et al. v. BROWNING et al.

No. 98.

District Court, W. D. Tennessee, E. D.

August 9, 1939.

K. T. McConnico, of Nashville, Tenn., and Charles M. Bryan, Phil M. Canale, and Frank H. Gailor, all of Memphis, Tenn., for plaintiffs.

Thomas H. Malone and Wm. J. Wade, both of Nashville, Tenn., for defendants.

Before HICKS, Circuit Judge, and TAYLOR and MARTIN, District Judges.

PER CURIAM.

This suit was brought by Prentice Cooper, A. T. Stewart and W. E. Hudson, candidates for the Democratic nominations for the offices of Governor of Tennessee, United States Senator, and Railroad and Public Utilities Commissioner, respectively, in the primary election to be held on August 4, 1938; by Fred Bauer and others, members of the Democratic Primary Board of Shelby County; by Frank Barton and others, candidates for members of the Democratic State Executive Committee; by Marion S. Boyd and others, candidates for various local offices of Shelby County in the general election to be held on the same day; and by E. A. Powell and others, citizens and taxpayers of Shelby County, some of whom are women and others of whom are members of the negro race; against Gordon Browning, Governor of Tennessee, T. Galen Tate and others, constituting the Board of Election Commissioners of Shelby County; R. O. Smith, Adjutant General of the State, and divers officers of the National Guard.

The bill avers that Cooper, Stewart, Hudson, Barton and others as such candidates were eligible to be voted for in the primary by every qualified Democratic voter in Shelby County and by every voter who would announce his intention to support the candidates of the Democratic party; that there appear upon the registration books of the County the names of over 100,000 voters who registered in the general registration of August 1937, thousands of whom were women and a large number of whom were negroes; that plaintiffs Bauer and others, members of the Shelby County Primary Board, were charged with the duty of holding the primary and permitting every qualified Democrat to vote therein; that there was a heavy registration in the general registration in August 1937 and in the supplemental registration in July 1938; and that there were more than 125,000 qualified and registered voters upon the registration books; that the same requirements for registration applied to the general election as applied to the primary and that plaintiffs Boyd and others as candidates therein had a right to have a full, fair and free expression of the votes of the electorate, uninfluenced by violence, fraud or conspiracy upon the part of any of the defendants and irrespective of when the voters registered or of their race, or any other circumstances surrounding them; that plaintiffs Powell and others who sued as qualified voters for themselves, and all others similarly situated, have the right to have their votes cast both in the primary and general election free from any such violence, coercion or fraud; that the plaintiffs who are women represent a class who on account of their sex are subject to fear and intimidation and that plaintiffs who are negroes have the right to be permitted to vote without coercion or browbeating.

The bill avers that defendant Browning, Governor, was a candidate for renomination and had publicly announced that he intended to set aside the general registration held in Shelby County in August 1937 and deprive plaintiffs and other electors who registered therein of their right to vote; that he made this announcement in disregard of the opinion of the Attorney General of the State that he was unauthorized to do so; that Browning, as Governor, together with Smith, the Adjutant General, had entered into a conspiracy with the Commissioners of Election of Shelby County to disfranchise a large portion of the electorate for the purpose of fostering his candidacy for renomination; that as a part of this conspiracy the Election Commissioners of Shelby County, appointees of the Governor, through his controlled State Election Commission, had announced that no persons could re-register in 1938 who had registered in 1937 unless they had moved from their former places of residence; that this created a situation whereby citizens who registered in 1937 would be automatically disfranchised. As tending to show such conspiracy, the bill sets out alleged excerpts from divers campaign addresses made by the Governor in furtherance of his candidacy. It is futile to restate these excerpts here.

The bill avers that these utterances indicated a purpose of the Governor to prevent the electors in Shelby County who registered in 1937 from voting in the Democratic Primary and General Election on August 4, 1938.

It further avers that the Governor had entered upon a campaign of terror in Shelby County; that he had had the Election Commissioners deliberately to select remote places for registration and had had the Crime Commission to go among the people, particularly among negroes, and attempt to see their registration certificates and upon seeing them to punch them with a ticket punch and advise that they thereupon became void; that he had had his "purgers" represent that they were Government officials in thus carrying out their plans to limit and destroy the right of franchise; that he had let it be known that he intended to use State troops to carry out his boast of stopping the voting by local voters in Shelby County and to terrorize them.

The bill avers that the defendant, the Adjutant General, had said on July 30th that the 117th Infantry of the National Guard would "be mobilized tomorrow subject to duty in the State" and that newspapers stated that railroad reservations had been made to move troops into Memphis on August 3rd.

The bill charges on information and belief that the purpose of the Governor was to create a reign of terror in Shelby County upon election day so that timorous electors would stay at home and that those who attempted to vote would be subjected to intimidation; that the Governor knew that there was no state of public disorder in Shelby County and no hint or threat thereof; that the courts were open; that there was no armed body of civilians in Shelby County and that the citizens were quiet, peaceable and obedient to any processes of the court, but that the Governor's design was to order the militia into the County without justification and that such order would be arbitrary, capricious and repugnant to both the Constitution of Tennessee and of the United States; that neither the Sheriff nor any civil authority had requested the use of military officers; that the peace officers of the County were adequate for any police duty which might arise; that the Legislature had not authorized the calling out of armed forces nor declared that any condition of rebellion or invasion was threatened; that the Governor was seeking to create disorder in Shelby County; that he had arranged to speak there on August 1, 1938 and had notified numbers of his supporters living outside of Shelby County to be present; that he was attempting to create a disturbance to justify himself in sending troops into the County.

The bill avers that the Governor had arranged with the Adjutant General to cancel the leave under which certain units of the National Guard were to attend maneuvers in Mississippi for the sole purpose of keeping the troops available for service in Shelby County; that the Governor had advised his Secret Police in Shelby County that troops would be sent there on election day; that while he was purporting to act under color of his office he was not acting honestly and lawfully as such, nor in the pursuance of any powers conferred upon him but for the purpose of forwarding his candidacy for renomination; that the Adjutant General had agreed to send the troops and that the Governor would order them sent into Shelby County unless restrained by the court; that the effect would be to intimidate the negro voters as well as the more timorous white voters and that the purpose was to create a condition of terror, violence and disorder; that the militia would be used to prevent a peaceable and orderly election and that it was the purpose of the Governor to prevent many thousands of voters from voting in the election and primary and that the effect of the conspiracy between the Governor and his co-defendants would be to deprive Shelby County of a Republican form of government and because it was the largest county in the state, to deprive the state itself of such form of government and substitute military despotism therefor.

The bill alleges that the definite purpose of the Governor, as announced by him, was to prevent thousands of people who registered in 1937 and would not be permitted to register in 1938, if such had been necessary, from voting at all, with the result that there would be anarchy and disorder and the probable prevention of any election at all in Shelby County; that taking from the citizens their right to vote in this manner would be taking their property from them without due process of law, in violation of the 14th Amendment, U.S.C.A.Const., and that forbidding them to vote upon the 1937 registration certificates would be discrimination, in violation of the 14th, 15th and 19th Amendments, and that the terrorization of women and negro voters would violate the 14th, 15th and 19th Amendments; that if the election in Shelby County should be destroyed by military dictatorship of the Governor, or if a large number of voters were thus prevented from voting, the candidates would be deprived of valuable property rights and suffer irreparable injury, for which there was no remedy except the injunctive processes of the court.

The bill avers that notwithstanding the provisions of Article III, Sec. 5 of the Constitution of the State of Tennessee, which prohibits the Governor from calling out the militia, except in cases of rebellion and invasion, and then...