Lane v. Wilson, 1635.

• Citation: 98 F.2d 980
• Decision Date: 19 September 1938
• Docket Number: No. 1635.,1635.
• Parties: LANE v. WILSON et al.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

98 F.2d 980 (1938)

LANE v. WILSON et al.

No. 1635.

Circuit Court of Appeals, Tenth Circuit.

September 19, 1938.

Charles A. Chandler, of Muskogee, Okl., for appellant.

Gordon Watts, of Wagoner, Okl., and Joseph C. Stone, of Muskogee, Okl. (Charles G. Watts, of Wagoner, Okl., on the brief), for appellees.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

LEWIS, Circuit Judge.

Appellant, a negro man, brought this action against the three appellees to recover from them $5,000, for that, as averred, they prevented his registration as an elector at the general election in November, 1934, because of his race and color. He was born in Alabama, but his residence has been in the village of Red Bird, Wagoner County, Oklahoma, since 1908 under claim of citizenship. He testified he voted in Oklahoma in 1910 and 1912, but did not vote thereafter because he did not register. He claims all the qualifications of an elector in Oklahoma (Oklahoma Constitution, Article 3, Section 1, Okl.St.Ann.Const. art. 3, § 1), and there is no denial of his right to vote if registered.

The complaint is an attack on the Oklahoma statute providing for registration as a condition precedent to the right to vote. The act was passed in February, 1916. It is said that prior thereto Oklahoma had no requirements of registration throughout the state. Anticipating the election to be held on November 6, 1934, appellant on October 24, 1934, in company with several other negroes applied for registration to Marion Parks, registrar in appellant's voting precinct in Wagoner County, and was refused. Appellant testified that Parks told him he "was instructed by the higherups not to register any colored people"; that Parks stated the higherups were Jess Wilson, county registrar, and John Moss, county judge. Three days thereafter he filed this suit. At the conclusion of all the evidence each side moved for an instructed verdict, and the Court ruled in favor of appellees.

The registration provisions and requirements applicable here are found in Volume 1, Article 3, Chapter 29, Oklahoma Statutes 1931, § 5651 et seq., 26 Okl.St.Ann. § 71 et seq. It is referred to in the act itself as providing for a permanent record of all electors in the state, and it defines elections:

"to mean every general, primary, regular, or special election held in this state, or in any county, city, town, township, school district, or precinct for the nomination or election of federal, state, district, county, municipal, township, school district, or precinct officers, including United States Senators and members of Congress, and upon any issue submitted to the people of the State or any municipality or subdivision of the State." Section 5651, 26 Okl.St. Ann. § 71.

Section 5652, 26 Okl.St.Ann. § 72, is this:

"It shall be the duty of every qualified elector in this state to register as an elector under the provisions of this Act, and no elector shall be permitted to vote at any election unless he shall register as herein provided, and no elector shall be permitted to vote in any primary election of any political party except of the political party of which his registration certificate shows him to be a member."

The next section (section 5653, 26 Okl. St.Ann. § 73) provides that the Secretary of the State Senate shall within 60 days after the act becomes effective appoint one qualified elector in each county as county registrar, and the county registrar so appointed shall immediately appoint precinct registrars in each precinct within his county, who shall be a qualified elector and who shall be the official registration officer in his precinct. He is empowered to administer oaths and to exercise all the authority conferred upon precinct registrars by the act. County registrars hold office at the pleasure of the Secretary of the State Senate, and the precinct registrars hold office at the pleasure of the county registrars.

Section 5654, 26 Okl.St.Ann. § 74, provides:

"It shall be the duty of the precinct registrar to register each qualified elector of his election precinct who makes application between the thirtieth day of April, 1916, and the eleventh day of May, 1916, and such person applying shall at the time he applies to register be a qualified elector in such precinct and he shall comply with the provisions of this act, and it shall be the duty of every qualified elector to register within such time; provided, if any elector should be absent from the county of his residence during such period of time, or is prevented by sickness or unavoidable misfortune from registering with the precinct registrar within such time, he may register with such precinct registrar at any time after the tenth day of May, 1916, up to and including the thirtieth day of June, 1916, but the precinct registrar shall register no person under this provision unless he be satisfied that such person was absent from the county or was prevented from registering by sickness or unavoidable misfortune, as hereinbefore provided. And provided that it shall be the mandatory duty of every precinct registrar to issue registration certificates to every qualified elector who voted at the general election held in this state on the first Tuesday after the first Monday in November, 1914, without the application of said elector for registration, and, to deliver such certificate to such elector if he is still a qualified elector in such precinct and the failure to so register such elector who voted in such election held in November, 1914, shall not preclude or prevent such elector from voting in any election in this state; and provided further, that wherever any elector is refused registration by any registration officer such action may be reviewed by the district court of the county by the aggrieved elector by his filing within ten days a petition with the Clerk of said court, whereupon summons shall be issued to said registrar requiring him to answer within ten days, and the district court shall be a expeditious hearing and from his judgment an appeal will lie at the instance of either party to the Supreme Court of the State as in civil cases; and provided further, that the provisions of this act shall not apply to any school district elections. Provided further, that each county election board in this state shall furnish to each precinct election board in the respective counties a list of the voters who voted at the election in November, 1914, and such list shall be conclusive evidence of the right of such person to vote."

Section 5655, 26 Okl.St.Ann. § 75, makes it the duty of the county registrar to furnish at the expense of the county the proper registration certificate books and supplies; provides how they shall be kept; that they shall be delivered to the registrar in each precinct who shall receipt for them, the receipts to be held at the office of the county registrar; provides how the registration books shall be marked, the form and contents of each registration certificate and duplicate of each certificate issued to be retained in said books after they are filled in by the precinct registrar with indelible pencil, the issued registration certificate to be signed by the precinct registrar.

Section 5657, 26 Okl.St.Ann. § 77, provides in part:

"Each qualified elector in this State may be required to make oath that he is a qualified elector in such precinct, and shall answer under oath any questions touching his qualifications as an elector and give under oath the information required to be contained in a registration certificate. Except in the case of a qualified elector who voted at the general election held in this state on the first Tuesday after the first Monday in November, 1914, in which case it shall be the mandatory duty of the precinct registrar to register such voter and deliver to such voter a registration certificate and the failure to so register such elector and to issue such certificate shall not preclude or prevent such elector from voting at any election in this State. If any person shall fail or refuse to give the information required in a registration certificate, or fail or refuse to answer...