Smith v. Blackwell

• Decision Date: 17 September 1940
• Citation: 34 F. Supp. 989
• Court: U.S. District Court — District of South Carolina
• Parties: SMITH et al. v. BLACKWELL, Secretary of State, et al.

34 F. Supp. 989

SMITH et al. v. BLACKWELL, Secretary of State, et al.

District Court, E. D. South Carolina, Columbia Division.

September 17, 1940.

M. W. Seabrook, of Sumter, S. C. (A. S. Merrimon, of Sumter, S. C., and C. B. Ruffin, of Bishopville, S. C., of counsel), for plaintiffs.

John M. Daniel, Atty. Gen., of South Carolina, and T. C. Callison, Asst. Atty. Gen., of South Carolina, for defendants.

LUMPKIN, District Judge.

This matter comes before me on a summons and complaint for a declaratory judgment in favor of the plaintiffs, the grounds therefor being more fully hereinafter set forth.

The defendants served a motion to dismiss the complaint under Rule 12(b), Section (6) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, one of the grounds being "the complaint does not state a claim on which relief can be granted."

Answer was served at the same time that the motion to dismiss was served.

The complaint sets out substantially the following grounds for relief:

(a) That the plaintiffs are citizens, taxpayers and qualified electors of the State of South Carolina and candidates for Congress and for Presidential Electors in said State and bring this action in their own right and on behalf of all others similarly situated.

(b) That defendant, W. P. Blackwell, is Secretary of State of South Carolina and ex-officio a member of the State Board of Canvassers and that the other defendants are Commissioners of Federal Elections for certain counties in this State and are made parties as representative of all Federal Election Commissioners in the State.

(c) That W. P. Blackwell, in his capacity as Secretary of State, compiles and publishes election laws of the State and instructions and directions to Commissioners and managers of elections who conduct general elections under his instructions and directions.

(d) That pursuant to Article I, Section 4, of the Constitution of the United States, Congress has made and altered regulations in respect to the election of Senators, and Members of Congress; that Acts of Congress from time to time have been adopted regulating the time for the election of Senators, manner of certification thereof, reapportionment of Representatives, election of Representatives by districts, etc., and the manner of voting, and in other respects such as set forth in the Federal Corrupt Practices Act and an Act to prevent Pernicious Political Activities, commonly called "The Hatch Act", also Title 2, Section 9 of the Code of Laws of the United States of America, 2 U.S.C.A. § 9, which prescribes that all votes for representatives in Congress must be by written or printed ballot, or voting machine, the use of which has been duly authorized by the State law.

(e) That the plaintiffs contend that the several Acts of Congress referred to have had the legal effect of annulling State legislation upon the subject of the conduct of elections for Presidential Electors, Senators and Representatives to Congress and left the matter entirely and exclusively a subject of Federal regulations, and that this action is brought for the purpose of ascertaining the true, legal interpretation of said statutes and provisions of the Constitution and thus Federal questions are presented to the Court affording this Court jurisdiction and that the plaintiffs are entitled to a declaratory judgment in the premises.

(f) The plaintiffs further allege that the true legal interpretations of the statutes and constitutional provisions is that all votes for the respective offices must be by written or printed ballot and that the word "ballot" implies secrecy and alleges that such secrecy can be had only by placing all names of candidates for the respective offices regardless of party affiliation on the same ballots, something similar to the Australian ballot system should be used in general elections in the State;

(g) The complaint also states the method of voting permitted by the State law of the State of South Carolina which is that each political party is authorized to put out its own separate ballots, having printed thereon only the names of its own candidates and no others, and contend that the only way secrecy of the ballot can be assured is to have the names of all candidates printed on the ballots. There are many other allegations about the method of conducting elections in the State of South Carolina, which the plaintiffs contend deny them the secrecy of the ballot and the prayer of the complaint is as follows:

"Wherefore, the plaintiffs pray for a declaratory judgment under the aforesaid Federal Declaratory Judgment Act, adjudging, and declaring the rights of the plaintiffs and all other qualified electors of the State of South Carolina respecting all the matters in controversy as set forth in this complaint, and properly construing the aforesaid statutes and Constitutional provisions, to the end:

"(a) That there shall be a secret ballot in the general elections of South Carolina;

"(b) That the secrecy thereof shall be in substance and not mere pretensive form, by ordering the names of all candidates for all political parties to be printed on the same tickets, which may be marked in private and curtained booths according to the principles of the so-called Australian System of voting, or any other system that will in truth and fact assure secrecy; and that this honorable Court do carry out its determinations and adjudications by ordering and directing the Defendants and all other election officers now to proceed in the premises; by enjoining the use of any other form of ballot than the aforesaid and of any other method of voting than that herein prayed for, in all general elections in South Carolina; and that this Honorable Court do grant such other and further relief as may be necessary and proper herein."

The motion of the defendants to dismiss the complaint under Rule 12 (b), Section 6, of the Rules of Civil Procedure is based on the positions:

(a) "That the plaintiffs by their Complaint undertake to invoke the aid of this Court to prescribe the method by which to conduct general elections in the State of South Carolina, although the Congress of the United States has left the regulations and conduct of general elections to the several states";

(b) "That there is no actual controversy between the parties to this action which will give this Court jurisdiction to grant the declaratory relief prayed for in the complaint";

(c) "Because the Complaint shows on its face that the election laws of South Carolina conform to the Constitutional provision which provides that all votes for representatives in Congress must be by written or printed ballots, or voting machine, the use of which has been duly authorized by the State law, and that it appears on the face of the Complaint that South Carolina conducts its general elections under State laws which provides for the election of Representatives in Congress by written or printed ballot";

(d) "That the Complaint shows that the plaintiffs do not allege that they are registered qualified electors and therefore they have no special interest in the matter set out in the Complaint";

(e) "That the only relief demanded in the Complaint is of a political nature and that an Equity Court has no jurisdiction over a suit to protect invaded political rights".

The motion to dismiss and the answer, in which was incorporated a motion to dismiss the complaint, were filed on the same date. Upon filing the pleadings the Court fixed the time and place for a hearing at Aiken, S. C., on the 27th day of September, 1940, but realizing the importance of the time element in this particular case, and wishing to give the plaintiffs the earliest possible hearing, the time and place of trial were changed to Columbia, S. C., on September 17, 1940.

Attorneys for the defendants moved that the motion to dismiss the complaint be first heard whereupon plaintiffs' attorneys requested the Court to permit the introduction of testimony before considering the motion to dismiss.

In keeping with the purpose and spirit of the new rules of Civil Procedure, I concluded it was proper to hear the motion to dismiss, and if it should be shown that the complaint did not allege a cause of action which would give this Court jurisdiction under the Declaratory Judgment Act, 28 U.S.C.A. § 400, it would be a useless waste of time to go into a trial of the case.

Having determined to hear the motion to dismiss, attorneys for the defendants were given the right to open and reply and each side was first allotted one hour to present its case, the defendants being given fifty minutes in opening argument and ten minutes in reply, while the attorneys for the plaintiffs were given one hour, which time was extended to one hour and forty-five minutes.

After hearing arguments I am convinced that the complaint does not state a claim or cause of action which would give this Court the right to grant the relief demanded in the complaint.

The plaintiffs invoke the provisions of the Federal Declaratory Judgment Act of July 14, 1934, as a basis for maintenance of this action. It seems well settled, however, that this Act only provides a mode of procedure and its provisions do not create any new right or cause of action, and it in no manner disturbs or affects the general principle that a plaintiff must show that a controversy exists between the parties and that such controversy is within the jurisdiction of the United States Court. Then, and only then, does the Federal Declaratory Judgment statute become the vehicle which carries the weight of the controversy through the United States Court until finally settled by the Court of Appeals, or the Supreme Court of the United States.

It will be remembered that the plaintiffs here are not claiming jurisdiction because of diversity of citizenship and amount in controversy, but are claiming their right to appear in court because they say the Statutes of the United...