United States v. State of Mississippi

229 F. Supp. 925

• Court: District Court, S.D. Mississippi
• Decided: June 22, 1964
• Docket: Civ. A. 3312
• Status: Published

Opinions

CAMERON, Circuit Judge:

In this action, the “Indestructible Union” member of the partnership which constitutes the government of this eoun-try makes a frontal attack upon the other member, the “Indestructible State” of Mississippi, seeking to enjoin the enforcement of certain laws of the State defining the qualifications of the “electors” who shall vote in elections for president and vice president of the United States and members of the Congress. The State of Mississippi and its people have, in the Constitution of 1890 and thereafter, enacted constitutional and statutory provisions covering the whole field of choosing of such “electors”. The United States seeks to strike down some of these enactments upon the claim that they violate the Fourteenth and Fifteenth Amendments of the Constitution, in that they deny certain rights to Negroes because of their race, color or previous condition of servitude. We hold that, from the face of the pleadings, the effort to strike them down may not succeed.¹

I.

The United States of America filed a complaint invoking the jurisdiction of this Court under the provisions of 42 U.S.C. § 1971(d),² 28 U.S.C. § 1345,³ and 28 U.S.C. § 2281.⁴ The State of Mississippi was joined as a party defendant pursuant to § 601(b) of the Civil Rights Act of I960.⁵ The other defendants are three members of the Miss. State Board of Election Commissioners, and six county registrars of voters (the regular]y elected Circuit Clerks of their respective counties).

The complaint is filed under the authority of 42 U.S.C. § 1971(a)-(e).⁶ It attacks the validity of the Mississippi Constitution and statutes which govern registration for voting. It contains four claims. In the plaintiff’s words, these claims are described as follows:

“The first claim of the Complaint attacks the validity of Section 244 of the Mississippi Constitution, adopted in 1955 and used since that time by registrars throughout Mississippi, which provides as a prerequisite for registrations that persons must read and write and give a reasonable interpretation of any section of the Mississippi Constitution and a statement of the duties and obligations of citizenship to the local county registrar on a form provided by the State Board of Election Commissioners. The Complaint attacks Section 244 and its implementing legislation on the following grounds:

“1. Section 244 vests unlimited discretion in the registrar and in light of its setting of white political supremacy and a racially segregated society it is an unconstitutional device to disfranchise Negroes ;

“2. Section 244 imposes new and more stringent requirements for registration following a long period of racial discrimination in the registration process, and exempts from the new requirement most of the white citizens, the inevitable effect of which is to perpetuate past discrimination ;

“3. In a State where public educational facilities are and have been racially segregated and those for Negroes are inferior, the interpretation test which bears a direct relation to the quality of public education violates the Fifteenth Amendment;

“4. Section 244 is vague and provides no objective standards for its administration;

“5. There is no reasonable or legitimate interest on the part of the State in requiring as a prerequisite for voting that citizens interpret certain of the legal and hyper-technical provisions of the Mississippi Constitution.

“The second claim of the Complaint attacks Section 241-A of the Mississippi Constitution enacted in 1960 which provides that applicants for registration shall be of good moral character. The Complaint alleges that this constitutional provision is invalid because, since registration is permanent, it exempts most of the white citizens in Mississippi from its requirements. It also provides no objective reference by which the county registrar may determine good moral character and thus is so vague and indefinite as to permit registrars to arbitrarily reject Negro applicants.

“The third claim attacks the validity of a Mississippi statute enacted in 1960 which permits registrars to destroy registration records. In 1960 Congress enacted Title III of the Civil Rights Act requiring county registrars to retain and preserve the very records which under Mississippi law are permitted to be destroyed.

“The fourth claim in the Complaint attacks a package of legislation adopted by the Mississippi legislature shortly after the Court of Appeals for the Fifth Circuit issued an injunction on April 10, 1962 forbidding the registrar in Forrest County, Mississippi, from engaging in discriminatory practices in registration for voting. This legislative package included House Bills 900, 903, 822, 904 [Laws 1962, cc. 570, 571, 572, 573]. H.B. 900 requires that applicants for registration complete a letter-perfect application form without assistance in order to qualify to register. H.B. 903 prevents registrars from advising applicants for registration as to the reason such applicant was rejected, because such would constitute assistance to the applicant. H.B. 822 and 904 provide for publication of the names of applicants for registration, require an applicant to wait an extended period even before he determines whether he is registered or denied registration, and permit any qualified elector to challenge the qualifications of any applicant whose name is published. This package of legislation is attacked as arbitrary and unreasonable. It exempts from its provisions most of the white citizens because they are presently registered to vote and its unquestioned effect is to impose more burdensome and stringent requirements for registration on persons not registered prior to 1962. The legislation as with the other laws under attack provides no objective standards for its administration.

“The relief requested by the United States is a declaration of the invalidity of Sections 244 and 241-A of the Mississippi Constitution and the implementing legislation of both provisions, the records destruction legislation, and four bills in the package of legislation enacted in 1962. An injunction vitiating the effects of the invalid Mississippi laws and practices thereunder is requested. [Actually the complaint prays for a mandatory injunction setting up court created state voter registration qualifications for Negroes only and requiring the defendants to use such qualifications in registering Negroes who may apply after the date of such an order.] Plaintiff also requests the court to find that the use of the invalid legislation has deprived Negro citizens of the right to vote on account of their race and that the deprivations have been pursuant to a pattern and practice of racial discrimination. This finding is sought to set in motion 42 U.S.C. 1971(e) of the Civil Rights Act of 1960.”

II.

Each defendant has moved to dismiss the complaint for failure to state a claim on which relief could be granted and the defendant Registrars of voters who are non-residents of this district have moved to dismiss for want of venue jurisdiction; the defendant Registrar of Claiborne County has moved for dismissal or for transfer to the division having venue jurisdiction of her county. Each defendant Registrar has also moved for a severance and separate trial. No supporting or counter affidavits were or have been filed. Answers have been filed by all defendants.

III.

It is elementary that in ruling on the motions to dismiss, the Court must treat them substantially as demurrers testing the legal sufficiency of the complaint. The Court must assume all of the complaint’s well-pleaded facts, as distinguished from conclusions, deductions and averments of law, as established for the purpose of the motion.'⁷' Neither the answers of the defendants nor any part of the discovery procedures should be considered.⁸

IV.

The Complaint further alleges the following as facts: All registrars of voters in the State of Mississippi since at least 1892 have been white citizens. In the counties of the defendant registrars, the statistics on voting age population of Negro and white persons and the approximate voter registration of each race are as follows:

WHITE NEGRO

Voting Age Registration Population Voting Age Registration Population

Amite 4449 3295 2560 1

Coahoma 8708 8376 14604 1371

Claiborne 1688 1440 3969 138

Lowndes 16460 5869 8362 63

LeFlore 10274 9803 13567 258

Pike 12163 9989 6936 124

At the time of the adoption of the Mississippi Constitution of 1890 there were substantially more Negroes than whites in Mississippi. By 1899, approximately 122,000 or 82% of the white males of voting age and 18,000 or 9% of the Negro males of voting age were registered to vote in Mississippi. Since 1899, a substantial majority of white persons reaching voting age in Mississippi have become registered voters. The percentage of Negroes registered to vote has declined.

During the period from 1899 to approximately 1952 Negroes were not allowed to register to vote; literate Negroes were required to interpret sections of the Mississippi Constitution; and Negroes were excluded from Democratic primary elections. During this time, victory in the Democratic primary in Mississippi was tantamount to election. By 1951, a much higher percentage of the Negroes of voting age in Mississippi were literate than in 1890.

In 1952, a proposed amendment to Section 244 of the Constitution, providing that in the future, it would be prerequisite to becoming an elector that a person be able to read and write any section of the Mississippi Constitution and demonstrate a reasonable understanding of such section and the duties and obligations of citizenship, was defeated by the voters.

In 1954, at least 450,000 or 63 per cent of the white persons of voting age in Mississippi were registered to vote. In 1954, approximately 22,000 or five per cent of the Negroes of voting age in Mississippi were registered to vote.

In 1954, after the Supreme Court had declared state operation of racially segregated schools unconstitutional, white citizens councils — not parties to this action — were formed in Mississippi. The purpose of these organizations was the maintenance of racial segregation and white supremacy in Mississippi. The first statewide project undertaken by these organizations was the attempt to induce the white voters of Mississippi to adopt the proposed amendment to Section 244 of the Mississippi Constitution of 1890.

Of the approximately 472,000 registered voters in Mississippi who were eligible to vote on this proposed amendment in 1954, about ninety-five per cent were white; fewer than five per cent were Negro. The amendment was adopted in a state where the public education facilities were and are racially segregated, and where such facilities provided for Negroes were and are inferior to those provided for white persons.

Since 1955, the defendant registrars, as well as many other registrars in Mississippi have enforced the requirements of Section 244, as amended, when Negroes have attempted to register to vote, by requiring Negroes to interpret sections of the Mississippi Constitution and to demonstrate their understanding of the duties and obligations of citizenship on the form prescribed by the State Board of Election Commissioners.

In 1960, approximately 500,000 or 67 per cent of the white persons of voting age in Mississippi, and approximately 20,000 to 25,000, or five per cent of the Negroes of voting age were registered to vote.

Of the approximately 525,000 registered voters in Mississippi who were eligible to vote on the proposed amendment adding Section 241-A to the Mississippi Constitution, about 95 per cent were white; fewer than 5 per cent were Negro. The amendment was adopted in a state where all state officials were white.

The suits filed by the United States against several county voter registrars and the action taken by the Court of Appeals in issuing an injunction against T. C. Lynd, the Circuit Clerk and Registrar of Forrest County, Mississippi, concerning voter registration discrimination, were matters of common knowledge throughout the State of Mississippi.

Some registration application forms, including some forms received by defendant H. K. Whittington in Amite County, Mississippi, have been destroyed.

In late 1961 and early 1962, Negro citizens and organizations conducted a voter registration drive in Mississippi for the purpose of increasing the number of Negroes eligible to vote in the 1962 Mississippi primary elections. For the first time in many years Negroes were candidates for the office of representative in the Congress of the United States. These facts were widely publicized and were matters of common knowledge throughout Mississippi.

V.

In support of its motion to dismiss, the State of Mississippi contends that Section 601(b) of the Civil Rights Act⁹ is unconstitutional as applied to it. Its position is that the Fifteenth Amendment forms the only basis for 42 U.S.C. § 1971,¹⁰ and that this amendment is directed to persons through whom a state may act and not to the sovereign entity of the state itself. The State of Mississippi also contends that all legislation by •which Congress may choose to implement •the Fourteenth Amendment is subject to the same objection. It supports these contentions by citation of numerous authorities.¹¹ These contentions appear to us to present a substantial constitutional claim. Cf. Gibbs v. Buck, Note 8, supra.

In Ex parte Virginia,¹² the Supreme Court of the United States used the following language:

“They [the proscriptions of the 14th Amendment] have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive or its judicial authorities. It can act in no other way. * * * Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition ; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. * * *

“But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured." [Emphasis added.]

This reasoning from Ex parte Virginia has been recently approved in Cooper v. Aaron ;¹³ and in United States v. Raines,¹⁴ as to the Fifteenth Amendment. In the case of Poindexter v. Greenhow,¹⁵ the Supreme Court said:

“In the discussion of such questions, the distinction between the government of a state and the state itself is important, and should be observed. In common speech and common apprehension they are usually regarded as identical; and as ordinarily the acts of the government are the acts of the state, because within the limits of its delegation of power, the government of the state is generally confounded with the state itself, and often the former is meant when the latter is mentioned. The state itself is an ideal person, intangible, invisible, and immutable. The government is an agent, and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. The constitution of the state is the limit of the authority of its government, and both government and state are subject to the supremacy of the constitution of the United States, and of the laws made in pursuance thereof. So that, while it is true in respect to the government of a state, as was said in Langford v. U. S., 101 U.S. 341 (Bk. 25 L.Ed. 1010), that the maxim, that “the king can do no wrong” has no place in our system of government; yet it is also true, in respect to the state itself, that whatever wrong is attempted in its name is imputable to its government, and not to the state, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which, therefore, is unlawful because made so by the supreme law, the constitution of the United States, is not the word or deed of the state, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name. It was upon the ground of this important distinction that this court proceeded in the ease of Texas v. White, 7 Wall. 700 (74 U.S., bk. 19 L.Ed. 227), when it adjudged that the acts of secession, which constituted the civil war of 1861, were the unlawful acts of usurping state governments and not the acts of the states themselves, inasmuch as ‘the constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states;’ and that, consequently, the war itself was not a war between the states, nor a war of the United States against states, but a war of the United States against unlawful and usurping governments, representing not the states, but a rebellion against the United States.”

In Ex parte Young,¹⁶ the court was explicit in holding that the proper defendant in an action seeking to prevent the enforcement of an unconstitutional statute was not the sovereign state itself, but rather the officer charged with the enforcement of the statute.¹⁷

Although the cases relied on principally relate to instances in which the Eleventh Amendment was invoked as a bar to the action brought, the State of Mississippi contends that it does not rely on the Eleventh Amendment here. It rather asserts that the legal reasoning which allows individuals to pursue alleged violations of Fourteenth and Fifteenth Amendment rights caused by “State Action,” despite the provisions of the Eleventh Amendment, is equally applicable to demonstrate the non-liability of the State in the present suit.

In the latest and only comment on the subject, the Supreme Court of the United States expressly pretermitted any decision on the constitutionality of Section 601(b) in its per curiam opinion in United States v. Alabama.¹⁸ The Court of Appeals for the Fifth Circuit has taken the same attitude in a direct comment on the same question in United States v. Atkins,¹⁹ in which the Court stated:

“In that case [United States v. Alabama], the Supreme Court intimated no views upon ‘any defenses, constitutional or otherwise, that may be asserted by the State.’ We follow the same course in the present case.”

Obviously these tribunals consider the question still an open and undecided one.

The plaintiff contends that Section 601(b) authorizes its suit against the State and cites in support thereof the Atkins case and the prior Fifth Circuit decisions of United States v. Lynd,²⁰ and United States v. Dogan.²¹

Since it is clear from United States v. Alabama, Note 18, supra, and United States v. Atkins, Note 19, supra, that neither the Supreme Court nor the Court of the Fifth Circuit considers that the constitutionality of § 601(b) has been passed upon and that both courts consider the question open, it is desirable to pause here to demonstrate that neither Lynd nor Dogan passed upon the constitutionality of the statute in any legal way.

.The hasty and confused handling of the two Lynd cases by the Court of Appeals for the Fifth Circuit leaves “the whole voyage of their life bound in shallows and in miseries.” Perhaps an effort at unscrambling them may be measurably fruitful.

The first case commenced against Lynd —but the second case decided — was brought under Title III, Civil Rights Act, 1960, 42 U.S.C. § 1974d, and involved an effort by Kennedy to examine and copy his records.²²

This case, No. 1604, in some way found its way to the Court of Appeals and was decided by a panel composed of Judges Rives, Brown and Wisdom, the opinion by Judge Brown. See Kennedy v. Lynd, 306 F.2d 222. The opinion covered several other cases from the State of Louisiana and is specifically dealt with beginning at page 227 under the heading “No. 19636, Lynd, Registrar Forrest County, Mississippi.” It was there that the dictum was first expressed that “Relief under § 1971(c) is not confined to named individual voter officials but extends as far as the sovereign State itself.” The opinion purports to lay down a broad sweep of general rules governing the right of the United States to examine and copy records.

It is plain that the above quo bed statement from page 228 of the Report is wholly without basis. Neither the United States nor the State of Mississippi was a party to that civil action. The appeal was from the action of the court below in passing the case to the files — certainly a non-appealable action which could be set aside by either party at any time upon a showing that the reason for putting the case on the inactive list was no longer in existence. The decision is bottomed by the author on United States v. Wood, 5 Cir., 1961, 295 F.2d 772, 777. An examination of that report will reveal that it did not involve any of the questions presented by Kennedy v. Lynd, and the statement that the sovereign State was within the ambit of the relief accorded by the statutes is without legal basis.

The second case commenced against Lynd — but the first decided — was brought pursuant to 42 U.S.C. § 1971(c) and involved a discrimination suit by the United States against Lynd and the State of Mississippi.²³ In that case, no mention was made anywhere in the pleadings, the brief of either counsel, or the opinion of the Court of Appeals of the question of the constitutionality of § 601 (b) of the Civil Rights Act of 1960.

This case had never been decided by the District Court. The State of Mississippi was joined as a party defendant, as permitted by the explicit terms of the Act. The only time we find the State mentioned in the opinion by the Court of Appeals is at page 823 of 301 F.2d, where it rejected the contention that the Court of Appeals should not grant a temporary injunction “because the State has not filed its answer and has not put on its proof.”

The trial court had ordered the United States to furnish the names of all persons whom it intended to use as witnesses to show discrimination. The Government responded by filing an amended complaint, to which it attached an appendix giving the names of its witnesses. A number of witnesses were called whose names did not appear on the list, and the defendants objected to the testimony as being outside the scope of the pleadings. The District Court permitted the United States to amend orally the amended complaint, with the condition, however, that defendants could defer cross-examination of the surprise witnesses for a period of thirty days and could then answer the amended complaint.

The United States rested its case, but the defendants duly reserved their right at a later time to put on their testimony. At the conclusion of the three-day hearing, the District Court ruled, upon application of the defendants, that all questions before it, including motion for preliminary injunction, would be deferred until after the thirty-day period, so that the defendants could prepare to cross-examine the witnesses whose names had been omitted from the list.

The District Court did not enter any order at all, and did not make any findings of fact or conclusions of law, and no notice of appeal was given, as provided by the Federal Rules of Civil Procedure. The United States adopted the expedient of going direct to the Court of Appeals for the Fifth Circuit, there filing a motion for an injunction pending appeal. The case was heard at an emergency hearing in Houston, Texas.

Neither in the District Court nor in the Court of Appeals was the question of the suability of the State of Mississippi mentioned in the briefs and, as stated, the opinion of the Court of Appeals did not mention the existence of such a question. The sole specification of error relied upon by the United States alleged that the District Court erred in not granting the temporary injunction prayed for.²⁴

It is clear, therefore, that the question of the constitutionality or meaning of § 601(b) never became an issue in either Lynd case and was never passed upon by the court in either case. Whatever language the Court of Appeals used in either Lynd ease, therefore, was pure dictum and established no precedent to guide the action of any court.

Nevertheless, the language misled the author of the opinion in the Dogan case,²⁵ and led to the quoting in Dogan of the statement which had been incorrectly made in Kennedy v. Lynd quoted supra.

The District Court for the Northern' District of Mississippi ²⁶ had denied the motion of the United States for a preliminary injunction against Dogan, Sheriff and Tax Collector, in connection with his alleged refusal to permit Negroes to pay their poll taxes. The State of Mississippi was named as party defendant, but the lower court had denied any relief against either Dogan or the State. We find no mention in the opinion of Honorable Claude F. Clayton, District Judge,²⁷ of the question whether any relief should be granted against the State of Mississippi. In the original record, however, among the various discussions of evidence between the court and counsel on one or more occasions, that question was adverted to. It is natural that the discussion did not relate to the suability of the state, because nobody made any attack upon the statutory grant of jurisdiction to sue the states. Some objections to testimony were made and the Government contended that the evidence was admissible to show the state’s connection with Dogan’s actions. Ruling was reserved on the objections, and the Court was never called upon to make its ruling, and did not ever rule on the question.

When the case reached the Court of Appeals, the two specifications of error filed by the United States were these:

“(1) The District Court erred in refusing to find that distinctions on account of race or color have been made in the collection of poll taxes-in Tallahatchie County;

“(2) The District Court erred in excluding evidence of racially discriminatory acts occurring prior to the incumbency of Sheriff Everett R. Dogan on December 24, 1959.”

No issue was raised before the Court of Appeals, therefore, as to whether relief “extends as far as the sovereign State itself.” It is clear, therefore, that the language used by the Court of Appeals in the Dogan case (314 F.2d page 771) is dictum and is not authority in any case involving a question similar to the one before us. In fact, Judge Rives, who is the author of Atkins, supra,²⁸ sat as a member of the Court in the second Lynd case and in the Dogan case.²⁹ And see also the majority and dissenting opinion of that court in United States v. Ramsey, 5 Cir., 331 F.2d 824.

The State of Mississippi further makes the point that any violation of 42 U.S.C. § 1971, which would give rise to a cause of action, would constitute a crime under the provisions of 18 U.S.C. § 242. This would then amount to an interpretation of the statute which would authorize a suit between the sovereign federal government and the sovereign state in a criminal matter. As between sovereigns there is no law of crime. It additionally makes the point that the State cannot create an agency to commit a crime, and therefore no statute by fiat can create such a criminal agency relationship.

The State also contends that the special statutes under which this three-judge Court is convoked (28 U.S.C. § 2281-2284) specifically authorize an injunction only “restraining the action of any officer of such State in the enforcement or execution” of the statutes charged to be unconstitutional.

In Federal Trade Commission v. Claire Furnace Co.,³⁰ the Supreme Court ruled that no injunction should issue against a party whose only connection with the proceedings was that it could have requested others to take enforcement action, since all defenses available to the party aggrieved could have been presented in the proceeding wherein enforcement was attempted. In the three-judge district court case of Massachusetts Farmers Defense Committee v. United States,³¹ the court relied upon the Claire Furnace Company case and other authorities to support the statement:

“It is well settled that where a statute or regulation is challenged as being unlawful or unconstitutional, an injunction will lie only against the person or agency who is charged with the enforcement of the statute or regulation.”

In Kresge Co. v. Ottinger, D.C., 29 F.2d 762, a special three-judge court, speaking through an opinion by Circuit Judge A. N. Hand, took similar action, as evidenced by the following excerpt from their opinion:

“Inasmuch as the district attorney of New York county and the board of optometry are nowhere in the statute charged with the enforcement of the act, each bill is dismissed as to them for this reason, as well as for other reasons hereafter stated."

The Federal Court System has always adhered to the rule that constitutional issues are not to be decided except where such constitutional decision is clearly required by the interests of justice. Perhaps the landmark case in support of this proposition is Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688. Speaking through Chief Justice Hughes, the Court stated [p. 324 of 297 U.S., p. 472 of 56 S.Ct. 80 L.Ed. 688] :

“The pronouncements, policies, and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining. The judicial power does not extend to the determination of abstract questions. * * * At the last term the court held, in dismissing the bill of the United States against the state of West Virginia, that general allegations that-the state challenged the claim of the United States that the rivers in question were navigable, and asserted a right superior to that of the United States to license their use for power production, raised an issue ‘too vague and ill-defined to admit of judicial determination.’ * * * Claims based merely upon 'assumed potential invasions’ of rights are not enough to warrant judicial intervention.” [Citations in the original opinion are omitted for brevity.]

The concurring opinion of Mr. Justice Brandéis gives us an outline of the great judicial principles applicable to constitutional adjudications: [Pp. 345-348 of 297 U.S., p. 482 of 56 S.Ct., 80 L.Ed. 688] :

“The Court has frequently called attention to the ‘great gravity and delicacy’ of its function in passing upon the validity of an act of Congress; and has restricted exercise of this function by rigid insistence that the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory opinions. On this ground it has in recent years ordered the dismissal of several suits challenging the constitutionality of important acts of Congress. * *

“The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

“1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions ‘is legitimate only in the. last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.’ * * *

“2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ * * * ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ * * *

“3. The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ * * *

“4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a ease can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. * * *

“5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. * * Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. * * *

“6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. * * *

“7. 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ ” ³²

We are of the view that the motion to dismiss filed by the State of Mississippi presents a case where the Court can and should avoid a decision on a question of constitutionality where, as here, the matter may be decided on non-constitutional grounds. As the Fifth Circuit pointed out in United States v. Atkins, supra, it would not be appropriate for it to grant relief against the State where Registrars are in office and are subject to suit and injunctive relief. Nowhere does the Complaint, except by injecting rash conclusions, demonstrate that the State, as such, is enforcing or threatening to enforce the statutes or constitutional provisions under attack. Rather, it is the County Registrars who are defendants who enforce the regulations in question.³³

Before leaving the question of the suability of the State, it is well to consider the circumstances under which the statute granting the right to sue the State came into being. The United States of America sued the State of Alabama, together with certain registrars who had resigned from the position before the suit was filed. The United States District Court for the Middle District of Alabama dismissed the action holding, among other things, that the sovereign State of Alabama was not subject to suit by the United States in the action involving alleged discrimination in the denial to Negroes of voting rights. United States of America v. State of Alabama et al., March 6, 1959, 171 F.Supp. 720, 730. It relied on the fact that the Civil Rights Act of 1957 did not specifically grant the right to proceed against the State. The court there followed the general law as stated in United States v. United Mine Workers of America, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, in which it- was held that sovereign governments were not included within the word “Persons.”

The Court of Appeals for the Fifth Circuit affirmed the decision of the district court, United States of America v. State of Alabama, June 16, 1959, 267 F.2d 808, stating:

“Without elaborating upon it, as under the settled law of the cases we could do in extenso, it is sufficient for us to simply say that, under the principle which has been, and still is, controlling upon the federal courts, whatever congress might or could do in providing in a civil rights action for conferring federal court jurisdiction over a state, it has never heretofore done so and it has not in terms done so in the statute invoked here.

“Absent such specific conferring of jurisdiction, a federal court would not, indeed could not assume jurisdiction over a sovereign state without a precedent determination that, though the jurisdiction had not been expressly conferred, the language of the invoked statute carried the necessary, the unavoidable implication that the congress upon the gravest considerations and after the utmost thought and deliberation had intended to and did confer it.” (Citing a large number of cases.)

While this action was pending in the Supreme Court upon certiorari, the Congress inserted the' words making the state itself conditionally liable under the Civil Rights Act (Act of May 6, 1960, 74 Stat. 86, § 601(b), 42 U.S.C. § 1971 (e)). The Supreme Court, on May 16, 1960, vacated the judgments of the Court of Appeals and the District Court and remanded to the District Court for further hearing, United States v. Alabama, 362 U.S. 602, 604, 80 S.Ct. 924, 4 L.Ed.2d 982, using this language:

“Shortly before the case was heard in this Court on May 2, 1960 [being the same day the case was argued before the Supreme Court], Congress passed the Civil Rights Act of 1960. * * * Among other things § 601(b) of that Act amends 42 U.S.C. § 1971(c) by expressly authorizing actions such as this to be brought against a State. Under familiar principles, the case must be decided on the basis of law now controlling, and the provisions of § 601 (b) are applicable to this litigation. * * *

“We hold that by virtue of the provisions of that section the District Court has jurisdiction to entertain this action against the State. In so holding we do not reach, or intimate any view upon, any of the issues decided below, the merits of the controversy, or any defenses, constitutional or otherwise, that may be asserted by the State.

“Accordingly, the judgments of the Court of Appeals and the District Court will be vacated, and the case remanded to the District Court for the Middle District of Alabama with instructions to reinstate the action as to the State of Alabama, and for further proceedings consistent with this opinion.”

From these facts it is clear that the statute was passed for a particular purpose, i. e., to fill a vacuum caused by the •fact that there were no registrars having jurisdiction over Macon County, Alabama. Under settled principles of constitutional law, this departure from traditional constitutional' principles would be held to apply only to the circumstances and conditions which lay behind the Court’s holding. We do not have such a situation here. The registrars are all available and full relief can be had against them, and the dismissal of the State from the controversy will in no wise prejudice the granting of the relief sought.

For the reasons stated we think that the proper course here is to grant the motion of the State to dismiss on the ground that the complaint fails to state a claim against it upon which relief could be granted.

VI.

The State Board of Election Commissioners is, by statute composed of the Governor, the Secretary of State, and the Attorney General of the State of Mississippi. § 3204, Mississippi Code of 1942, Annotated. The duties of these Commissioners are comprehensively prescribed and particularized by statute. § 3209.6 Mississippi Code of 1942, Annotated. We have examined the Complaint in detail without finding any fact allegation that these Commissioner Defendants did in any way enforce any of the statutes under attack, nor is any fact allegation made that their actions enforced a denial of registration to any otherwise qualified applicant because of the race or color of the applicant or for any other reason.

No choice is given to the State Election Commission in the selection of County Registrars, that duty arising only in the extreme situation where they have reached the determination that the duly elected Circuit Clerk is an “improper” person. They have no control over the tenure or actions of the Circuit Clerk as Registrar once they have appointed him as required. They are rigidly regulated as to the type of registration forms they must prepare. The statutes make it plain that they are mere conduits through whom a minor part of the registration process is required by statute to flow. The . State Election Commissioners are not charged in the Complaint with promulgating any form or with appointing any Registrar otherwise than in accordance with their duties under the statutes relied upon by plaintiff. These statutes are not under attack in this case. Considering the Complaint and any set of circumstances which could be proved under its allegations, we cannot visualize how an injunction could issue against the State Board of Election Commissioners or any of its members individually, for they are not charged with enforcing or threatening to enforce any of the statutes under attack.³⁴ The presence of the State Election Commissioners as parties-defendant in this litigation nevertheless presents the rights of three additional defendants which must be recognized by way of pleadings, discovery procedures, objections to evidence, cross-examination of witnesses, presentation of evidence, and the many other trial procedures which, while time-consuming, are the due of every litigant under our system of judicial procedure.

Three-judge courts constitute a unique burden on the Federal Judiciary. To keep this burden to a minimum, the statutes vesting the right to call such courts to sit in judgment of constitutional challenges are to be strictly construed as a procedural technicality and not as a broad remedial social policy. See Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800; Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741; and Kesler v. Dept. of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641.

Where, as here, parties are brought before such a tribunal who are not at all within the contemplation of the statutes attacked and who are not indispensable, necessary or proper parties to the determination of the issues in controversy, they should be dismissed in the interests of sound judicial administration as well as to spare the litigants themselves the expense and inconvenience of a trial procedure. For these additional reasons, the motion of the State Election Commissioners to dismiss for failure to state any claim upon which relief could be granted should be sustained.³⁵

VII.

We are further of the opinion that the statutes of Mississippi make it plain that the County Registrar alone is charged with the enforcement of the statutes under attack here.³⁶

Complainant makes no charge of any conspiracy or any concert of action between any two or more of the individual csunty registrar defendants.³⁷ By plaintiff’s own interpretation, the Complaint charges no series of transactions or occurrences but, rather, individual enforcement by the separate Registrar Defendants of the statutes alleged to be unconstitutional and void. We cannot agree with plaintiff’s contention that, if sev•eral unrelated officials of a State independently applied the terms of a statute dn the enforcement of their duties of office, all of such applications would constitute a single transaction or occurrence, or a series of transactions or occurrences within the meaning of Rule 20(a) of the .Federal Rules of Civil Procedure.

In the absence of a charge of joint wrong-doing by the individual defendant registrars, we find no authority to continue the suit against them as a joint •cause of action. Each act of registration •or failure or refusal to register must, of necessity, take place separately and apart •from every other act of registration or non-registration, even within the same ■county. The Complaint contains no allegation that any such act of registration •or failure or refusal to register was a part of any transaction or occurrence ■concerned with similar acts in a separate •county. The only nexus is the use of the .same registration laws. This is insufficient to support a joint cause of action.

VIII.

If the plaintiff intended by its Complaint to state also a cause of action based upon a pattern and practice of individual racial discrimination by these ■defendants in the enforcement of the duties of their offices, such causes of action would be justiciable solely before a single •district judge.

This Court has venue jurisdiction of the claims asserted against H. K. Whittington, the Registrar of Amite County, and against Wendell R. Holmes, The Registrar of Pike County, both of these defendants being residents of the Jackson Division of the Southern District. We do not agree with plaintiff’s effort to consolidate the various counties with the idea that the acts of the several registrars may be pooled in determining whether there has been a pattern or practice under the terms of the statute. Those very terms recognize that each county in Mississippi is a separate unit for registration and must be so treated in every action against the registrar.

IX.

The asserted right of plaintiff that the United States can maintain this action against any one or all of the defendants is not sustained by the authorities upon which the plaintiff relies.³⁸

§ 2281 deals with three-judge courts, and we need spend no time in further discussion of that statute. The controversy is limited, therefore, to whether the Congress could vest in the plaintiff the right claimed by it to maintain this particular action and whether § 1971 does, in fact, justify maintenance by the plaintiff of the action it has brought. It should be borne in mind what is fairly stated in the complaint and the briefs of the plaintiffs and what its attorney categorically stated at the argument— that the sole object of this action is to have the Court declare the attacked sections of Mississippi’s Constitution and statutes unconstitutional, and to substitute therefor the alternative suggestions set forth in the complaint; the plaintiff specifically disavowing any desire or purpose to seek any relief based upon discrimination. This is further verified by the four claims stated supra in plaintiff’s own language.

It is elementary that all federal jurisdiction is statutory unless the Constitution itself confers it. And the existence of federal jurisdiction must be shown clearly, and it must be denied if there is doubt about the constitutionality of the grant of jurisdiction. In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, the court was able to save what would otherwise have been an unconstitutional grant by surrounding the jurisdiction by narrow limitations.

The only claim asserted by plaintiffs which has any show of merit is that this action is maintainable under 42 U.S.C. § 1971(d), which has been quoted supra. That subsection must be considered in the light of the one immediately preceding it: “Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section * * The provision of subsection (a) to which reference is made is in these words: “(a) All citizens of the United States who are otherwise qualified by law to vote in any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, col- or,” notwithstanding the Constitution, laws, custom or usages of the state.

These words from subsection (a) plainly state that the United States may intervene in aid of any person of color, provided that person is “otherwise qualified by lato to vote at any election by the people in any state * * * ” (Emphasis added.) The meaning of these provisions seems perfectly clear. The United States may institute proceedings for preventive relief, provided a state officer is threatening or attempting to deny him the right of voting in a federal election; and provided also he had “the qualifications requisite for electors of the most numerous branch of the state legislature.” Then, and only then, could the United States come to the rescue of one of its citizens whose right to vote was challenged. In that event, the Attorney General was empowered to bring an action for preventive relief.

The complaint here fails to show that those circumstances existed. This action seeks no relief for any citizen who is qualified under the laws of Mississippi to vote for electors of the most numerous branch of Mississippi’s legislature. This action seeks solely to have the Court declare unconstitutional most of the qualifications Mississippi defines for electors of the most numerous branch of its Legislature. It constitutes a massive scatter-gun attack against the many important provisions of Mississippi’s Constitution and statutes. There is no intimation that § 1971, as a whole or as to any part of it, vests such a right in the United States itself. § 244 was placed into-the organic law of Mississippi by its people in convention assembled after the-confusions and frustrations of twenty years of the Tragic Era had subsided enough for its citizenship to bring a semblance of order out of chaos. The people-themselves, through their elected convention, placed that section in the Constitution.

The other constitutional provisions attacked by the plaintiff entered the Constitution of Mississippi by the direct vote-of the people. The symmetrical statutory structure for carrying out the constitutional, mandates was worked out and duly passed by the legally constituted legislatures of the state. § 1971 does not. invest the United States or its Attorney General with any power to bring any action to destroy any state’s constitution or laws.

It is clear that § 1971 contemplated and envisioned the existence of state requirements for voting which did not on their face discriminate because of race or color. The operative language-is “[a] 11 citizens of the United States who are otherwise qualified by law to vote.” This presupposes the existence of valid state requirements for voting. There is no provision of the Constitution or a statute of Mississippi which deprives any citizen of the right to vote because of race or color.

It is equally clear that this effort of the United States to invalidate the state voting requirements here involved is outside the scope of the Fifteenth Amendment to the Constitution, which has been repeatedly held to be the sole basis of § 1971(a). United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 and Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340.

Guinn involved a constitutional provision of Oklahoma, which set up a registration requirement for voting, but provided that this requirement should not be applied to any person who was, on January 1, 1866, qualified to vote or to the lineal descendant of such person. The Supreme Court found this constitutional provision on its face to be in conflict with the Fifteenth Amendment, since it was well known that no Negroes were qualified to vote in Oklahoma on January 1, 1866. This brief quotation from the decision in Guinn (238 U.S. 347, at 362, 35 S.Ct. 926, at 930, 59 L.Ed. 1340) will suffice to demonstrate the attitude of the court then and now:

“Beyond doubt the Amendment does not take away from the state governments in a general sense the power over suffrage which has belonged to those governments from the beginning, and without the possession of which power the whole fabric upon which the division of state and national authority under the Constitution and the organization of both governments rest would be without support, and both the authority of the nation and the state would fall to the ground. In fact, the very command of the Amendment recognizes the possession of the general power by the state, since the Amendment seeks to regulate its exercise as to a particular subject with which it deals. * * * Thus the authority over suffrage which the states possess and the limitation which the Amendment imposes are co-ordinate and one may not destroy the other without bringing about the destruction of both.”

Language of identical import is found in Reese (92 U.S. 217-218, 23 L.Ed. 563).

The first sentence of subsection (c) of § 1971 is the one which grants the Attorney General the power to institute certain proceedings under certain circumstances: “Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section.” The plain meaning of that part of subsection (c) is that Congress vested the Attorney General with power to seek injunctive relief against state election officials acting under color of law when said officials should deny a person “otherwise qualified to vote” of the right to vote because of race or color.

Assuming, therefore, that § 1971 does empower the United States, through the Attorney General, to assist legally a person who meets all of the other qualifications of Mississippi law, who is being discriminated against because of his color, the statute does not tend to support the action here, which is not based upon discrimination, but upon the asserted fundamental unconstitutionality of the entire structure of Mississippi law providing voter qualifications. Under these circumstances the least this Court can do is to avoid a doubtful constitutional construction and to dismiss the action because it is not brought under any power given by the statute relied on, but is a direct attack by the Indestructible Nation as such, and is against the Indestructible State as such. And, moreover, it is an attack against a state aimed at destroying its action in a field committed exclusively to it by the Constitution; to-wit, the state’s power to determine and define the qualifications of the electors who may vote not only in state elections, but in federal elections as well.

X.

Article I, Section 2 of the Constitution provides that representatives shall be “chosen every second Year by the People”. It further provides that “the ■Electors in each State shall have the "Qualifications requisite for Electors of •the most numerous Branch of the State Legislature”. These simple words con-fain the only requisite provided for the ■selection of those persons who shall vote in federal elections.³⁹

As pointed out by Dr. Ritz, the very ^simplicity of this language of the Con.stitution might tend to suggest casualness of draftsmanship. He promptly points out, however, that such was not ■the case, suggesting that the records of the convention, as discussed in Farrand, show that it was deeply concerned with ■problems relating to the election of offi■cials of the Federal Government, adopting a plan for the indirect election of the President and Vice President by use of an electoral college. The convention provided: “Each state shall appoint in such ■manner as the legislature thereof may ■direct, a number of electors * * * ”, 'thereby leaving the method of selection .and qualifications to the states, although 'Congress was authorized to establish the time of their choosing.

On May 29, 1787, in presenting the resolutions known as The Virginia Plan, which provided the basic framework of •the Constitution, Edmund Randolph proposed a national legislature to consist of two branches, the members of the first 'to be elected by the people of the several states, and the members of the second to ‘be elected by the first branch from per.sons nominated by the state legislatures. The national executive was to be elected by the national legislature.⁴⁰

On May 31, sitting as a committee of the whole House, the convention approved the resolution calling for a national legislature to consist of two branches, and then considered and debated the resolution calling for election of the first branch by the people, adopting it by a vote of six states to two, with two states divided.⁴¹ A few days later the convention reconsidered and again upheld popular election, this time by a vote of eight states to three.⁴²

During consideration of The New Jersey Plan, still another attack on popular election was narrowly defeated, then another motion to reconsider was voted down by six states to four, with one divided.⁴³

As Dr. Ritz points out, on page 950 of the A.B.A. Journal for October, 1963, various aspects of the provision were debated with care until, finally, the provision was passed without any state dissenting. The debate on the qualification of voters was thus ended. On August 9th, the convention granted to Congress the power to supersede state regulations as to the time, place and manner of holding elections. The debate shows that it was pointed out that the provision had nothing to do with voter qualifications.⁴⁴

On September 8th, the convention named a committee of style, which made only one change which was adopted by the convention denying Congress any power over the place of election of senators. The provisions relating to elections were adopted and became a part of the completed Constitution.⁴⁵

The article further points out that the Seventeenth Amendment ratified in 1913, providing for the popular election of senators, follows the pattern set forth in the original Constitution by providing that the electors in each state shall “have the qualifications requisite for electors of the most numerous branch of the state legislatures”.⁴⁶

It further states that, except for the Fifteenth and Nineteenth Amendments, which place restrictions on the qualifications the states may require of electors for state officials and so, indirectly, become limitations on the qualifications as defined in the original Constitution, “Otherwise, there are no constitutional restrictions on the qualifications the states may require of electors for state oficiáis, and so also of electors of federal officials.⁴⁷” The article refers also to the “Poll Tax Amendment,” emphasizing that it departed from the pattern of previous amendments in that a state is permitted to establish a different qualification for electors to the most numerous branch of its own state legislature than the state can establish for the election of federal officials. But the elimination of that qualification could be done by constitutional amendment alone.

It is clear, therefore, that in the ratification of the Seventeenth Amendment and of the Poll Tax Amendment, the Congress of the nation and the people have affirmed in this century that the power to establish or change the qualifications of electors for federal officials can be accomplished by constitutional amendment alone.

Dr. Ritz’s estimate of the constitutional scheme for establishing the qualifications of electors for federal officials is

thus stated at the conclusion of his article:⁴⁸

«* * * For this reason, the Constitution establishes the qalifica-tions of electors for federal officials by a readily ascertainable and completely objective standard. This objective standard is beyond the power of the Federal Government to change, except by going to the states, and the people to seek a change through the process of constitutional amendment. History demonstrates that when a change has been needed, the necessary constitutional amendments have been forthcoming. * * * ”

The decisions of the Supreme Court teach a similar lesson. Slaughter-House Cases, 16 Wall. 36, 83 U.S. 36, 21 L.Ed. 394; Minor v. Happersett, 21 Wall. 162,. 88 U.S. 162, 22 L.Ed. 627; United States v. Reese, supra; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005; Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340; Newberry v. United States, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913; Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252; Lassiter v. Northampton-Board of Elections, infra.

XI.

At the risk of tedium, we feel that we-ought to discuss briefly the provisions, of Mississippi’s Constitution and statutes which plaintiff would strike down. We find each of them to be within the-power of the State and to be reasonable- and valid. For convenience, we copy at this point in the margin the language-of §§ 244 and 241-A of the Constitution.⁴⁹ Attack is made also upon sixteen statutory enactments published in the Mississippi Code of 1942. We will not copy or refer to those at this point beyond this mention of them, but will bring forward the gist of the statutes as they are discussed.

It is appropriate at the outset of this portion of the opinion to set forth the basic principles which have guided the court in reviewing questions presented by the motion to dismiss:

“The cardinal principle of statutory construction is to save and not to destroy. * * * as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.⁵⁰”

Courts should consistently seek an interpretation of a statute which supports constitutionality and avoid, where posi-ble, holding that the statute is vague or indefinite.⁵¹

When the terms of a statute are unambiguous the court may not, in construing it, speculate on probabilities of the intention of Congress.⁵² The legislative history of an unambiguous statute is immaterial.⁵³

“The plain words and meaning of á statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.” ⁵⁴

With these principles in mind we have examined the provisions of the constitutional and statutory sections here challenged to determine if they are ambiguous or uncertain. We find them to be plain, simple and straightforward. Their meanings and intention are transparent and completely unambiguous. We have, therefore, determined that their constitutional status cannot be changed by delving into supposed legislative intent, history or purpose.

It is likewise true that the method of application or administration of the statutes cannot affect the validity or invalidity of the statutes themselves. In Giles v. Harris, 189 U.S. 475 at 487, 23 S.Ct. 639, at 642, 47 L.Ed. 909, the Supreme Court stated:

“If the sections of the constitution concerning registration were illegal in their inception, it would be a new doctrine in constitutional law that the original invalidity could be cured by an administration which defeated their intent.”

The reverse effect has also been negated:

“A statute may not be held void because of the action of an executive officer in applying its provisions. Even when there is an abuse of executive power against which the courts cannot relieve because of their inability to control administrative discretion, the act of Congress under which the action is taken is not rendered invalid any more than it is by action which is absolutely unauthorized.” ⁵⁵

Indeed, any other method of statutory interpretation would permit members of the Executive Branch, at will, to make or unmake legislative enactments. We do not hold that arbitrary or discriminatory administration of a law which is valid on its face will not give rise to a right of action against the offending enforcement official; rather, we limit our holding to the determination that such administration cannot change the constitutional status of the law on its face.

XII.

The analysis of the Complaint required by the motions before us should properly begin with a consideration of the validity of Section 244 of the Mississippi Constitution. This same section in its present form was before this Court in Darby v. Daniel, D.C.1958,168 F.Supp. 170, from which no appeal was taken. We could very well fashion our opinion at this point by literally rescripting Sections I and II from this opinion, but such a procedure would be needlessly prolix. Suffice it to say that we adopt those two sections as our opinion here upholding the constitutionality of Section 244 on its face.⁵⁶ The authorities there cited are still completely valid support for the points made. The fact that plaintiff there was required to follow the administrative remedies available to him does not detract from the logic or correctness of the court’s constitutional holding, which we approve as controlling the identical questions here presented.

Since the date of the Darby decision, the Supreme Court of the United States has again placed its stamp of constitutional approval on the use of a literacy test as a permissible voter qualification requirement. Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. The court there stated:

“The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot. Literacy and illiteracy are neutral on race, creed, col- or, and sex, as reports around the world show. Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise. Cf. Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221, appeal dismissed 339 U.S. 946, 70 S.Ct. 804, 94 L.Ed. 1361. It was said last century in Massachusetts that a literacy test was designed to insure an ‘independent and intelligent’ exercise of the right of suffrage. Stone v. Smith, 159 Mass. 413-414, 34 N.E. 521. North Carolina agrees. We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards.” ⁵⁷

In Trudeau v. Barnes, 65 F.2d 563, cer-tiorari denied 290 U.S. 659, 54 S.Ct. 74, 78 L.Ed. 571, the Court of Appeals for the Fifth Circuit approved Louisiana’s constitutional requirement embracing reading and interpreting its Constitution and that of the United States. However, on November 27, 1963, in the case of United States v. State of Louisiana, supra, a two-judge majority of a three-judge District Court panel hearing that case held that the Trudeau case was no longer valid in the light of the decision in Davis v. Schnell, supra, and “the more recent cases.” They also pointed out that the Trudeau court, perhaps because of the poor presentation of the case, did not have the “benefit” of evidence of discriminatory purpose and proof of “discriminatory affect” of the Louisiana interpretation test. We think this citation is invalid especially in view of the Supreme Court’s holding in Las-siter.

We note, moreover, these differences between United States v. Louisiana and the case here presented, it being there contended:

1. The Loúisiana Board of Registration has the power to remove at will any parish registrar of voters;

2. The parish registrar’s whim alone determines who will be tested and who will be registered without testing;

3. No written records were made in most test cases, thus precluding the use of such records for check or review purposes ;

4. The Louisiana Registrar is vested with “raw power;”

5. The test prescribed by Louisiana’s law has no rational relation to a legitimate governmental objective; it vests unrestrained discretion in the Registrar; it is subjective, unreasonable and is incapable of equal enforcement.

Their opinion equates the Louisiana constitutional provision with Alabama’s Boswell Amendment, which was condemned in Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093. For the reasons set out in Darby and because of the legal and factual differences noted above, we cannot agree that Mississippi’s Section 244 presents the same questions.

The Louisiana three-judge opinion also places much emphasis on its conception of the difference between “literacy” and “understand” and “interpretation.” The latter two phrases are said to be words without definite meaning in the law and unlike the words “read” and “write.” We cannot agree with the court’s observations there. First of all, it seems clear to us that, when the Supreme Court stated “Literacy and intelligence are obviously not synonymous” in its opinion in Lassiter quoted above, it did not mean that tests which require a showing of comprehension, understanding or interpretation are not literacy tests. Rather, we believe the court there meant to demonstrate logically that an illiterate person could be intelligent, but that literacy was nevertheless a permissible standard for states to require of prospective electors. The dictionary defines the adjective “literate” as “instructed in letters; educated; specifically, able to read and write.” It defines-the noun “literate” as “one who can read and write.” The transitive verb “read”' is thus defined: “to go over, especially,, with apprehension of the meaning of, as characters or words; to take in the sense of, as of language, by interpreting-the characters with which it is expressed. To utter aloud or render something written, especially so as to give an interpretation' of its significance. To interpret; to discover the meaning of.” The transitive verb “read” is defined: “to-peruse or to go over with understanding.” [Emphasis added.]

Literacy must necessarily include understanding if it is to be the meaningful requirement of voter qualification which the Supreme Court discussed in Lassiter. If literacy encompassed only the ability -orally to pronounce the syllables of a grouping of letters, without a corresponding understanding or comprehension of their meaning, it would signify nothing. A person might look at a book .or letter written in Spanish or French .and have the ability to write off the words found there and to pronounce them ¡orally, but if he knows nothing of the meaning or thought conveyed by those words, he cannot be said to be literate in Spanish or French. This reasoning .draws added support by reference to 42 U.S.C. § 1971. In subsection (e) thereof •the Congress recognized literacy and understanding as valid voter qualification .requirements in two separate places in their directions to court appointed voting referees.⁵⁸

The lack of an effective review procedure is another significant difference between the Louisiana case and Mississippi’s Section 244. In Section IV of the ■opinion in Darby, the court discussed in ■detail the machinery which Mississippi Tad at that time provided for reviewing decisions of the Kegistrar.⁵⁹ Since the Darby decision, the only change in the re-view procedure has been to require the ■County Election Commissioners to con.sider both oral and documentary evidence. The statute still provides that the hearing is de novo. As we pointed ■out in Darby, “The heart of Mississippi’s [registration] machinery lies in the right of any person to appeal to the County Election Commission.”

We would also call particular attention to the fact that the words of 42 U.S.C. § 1971(d) permitting recourse to this Court, without regard to whether the party aggrieved shall have exhausted administrative or other remedies, were also before the court in Darby. Nowhere does the Bill of Complaint before us allege or aver that anyone who claims to have been denied the right to register even began the “simple,” “cheap,” administrative remedy open under Mississippi law, let alone pursued it or exhausted it.

For all of these reasons, we distinguish the case of United States v. Louisiana, supra, from the situation presented by the Complaint now before this Court. To the extent that its holdings may conflict with those here, we do not follow it.

Section 244 should be appraised in yet another way, as suggested by the Supreme Court in Yick Wo v. Hopkins, Sheriff, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. In that case, the court suggested a simple but effective test to determine if a statute or ordinance vests arbitrary power in the officer charged with its enforcement and administration. This test is as follows:

[In that case, persons who wished to operate laundries in wooden buildings were required to obtain the consent of the Board of Supervisors.]

“ * * * if an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition demanded of any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their assent, without reason and without responsibility.”

Because of the result of the test, the court held the statute there under consideration to be purely arbitrary.⁶⁰

For sake of comparison, we call attention to the situation presented in Schnell v. Davis, supra, and the Boswell Amendment and its implementing statute requiring an applicant for voter registration to establish to the satisfaction of the Registrar that he or she was qualified. If we apply the mandamus test suggested by Yick Wo, we would have this situation: a fully qualified applicant would request the court to mandamus the Registrar to place his name on the rolls. The Registrar could persist in his denial and resist the mandamus action by simply stating that he was not satisfied with the applicant’s attempt to establish to him that he or she was qualified. This would be a complete answer to the mandamus proceeding without reason given and without further responsibility on the Registrar’s part.

Under the provisions of Mississippi’s Section 244, the situation is just the reverse. Here, if a qualified applicant has made a reasonable interpretation and been refused registration by either the Registrar or the County Election Commission, a mandamus action would most surely result in a requirement that the applicant be registered, because the question before the court would be: did the applicant give a reasonable interpretation?

Seeing no reason to depart from our opinion in Darby v. Daniel, we hold that Section 244 of the Mississippi Constitution is valid on its face and does not violate the Constitution or Laws of the United States.

XIII.

The Complaint next charges that Section 241-A of the Mississippi Constitution violates the Constitution of the United States. Good moral character is a prerequisite for admission to practice before the Supreme Court of the United States,⁶¹ the Court of Claims of the United States,⁶² and United States Custom Court,⁶³ and each of the ten circuit Courts of Appeals.⁶⁴ Good moral character is a prerequisite for naturalization.⁶⁵ Connecticut,⁶⁶ Alabama,⁶⁷ Georgia,⁶⁸ and Louisiana ⁶⁹ all require a prospective elector to be of good moral character or good character. In Atkins, 323 F.2d 733, the Court of Appeals for the Fifth Circuit approved the Alabama requirement of good moral character upon condition that a proper written examination is provided. The Mississippi statutes outlined supra provide very stringent requirements for such a hearing as to moral character. § 3217-01 through § 3217-14.

Mississippi presently requires good moral character of:

Taxicab Operators § 3495

Incorporators of Banks § 5156

Bank Examiners § 5165

Architects § 8632-09

Attorneys § 8654

Barbers § 8725

Dentists § 8755

Embalmers § 8782

Nurses § 8816

Optometrists § 8840

Pharmacists § 8848

Physicians Podiatrists § 8879 § 8896

Accountants § 8905

Veterinarians § 8914-07.⁷⁰

Counsel have pointed out in argument that a majority of states require good moral character of applicants for licenses as architects, attorneys, barbers, engineers, medical doctors, undertakers and embalmers, pharmacists, real estate salesmen, veterinarians and public accountants. These are but a few examples of the wide use that the term has found in statutory situations where legislative bodies sought to extend privileges to those citizens whom it thought worthy of confidence and trust. We mention these instances to demonstrate that good moral character has found widespread acceptance as a concise and meaningful description of an attribute of a desirable citizen. It seems to us to be self-defining. Any attempt by the legislature to have written a definition applicable to all applicants for voter registration or for any of the licenses mentioned would undoubtedly have ended in a cumbersome, wordy enactment which could have added nothing to the inherent meaning of the words themselves and might well have detracted from their efficient and effective application.⁷¹

^Requiring that applicants for registration as qualified electors be of good moral character is reasonable and is patently not discriminatory on the basis of race. We note that there is no allegation or charge that Negroes have bad moral character as a racial trait, even though such an allegation would not per se invalidate the enactment.⁷² It does discriminate — but in a way that is in nowise unconstitutional. It bars those of bad moral character of every race from becoming voters. While it is beyond this Court’s prerogative to commend the enactment of such a measure, we do have authority to say that such an enactment is entirely within the constitutional competence of the people of the State of Mississippi. It is a regulation calculated to improve the quality of the electorate though it might curtail its number. This may justifiably be thought to be a pathway to better government.

The Complaint objects to this requirement on the ground that, since more whites than Negroes are now registered, the greater numerical impact will fall on Negroes. This statistical argument is without legal merit.⁷³ It also lacks logical merit. The provision applies equally to every unregistered person of every race, now and for all time to come. It does not partake of the invalidity detected in Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340, and Lane v. Wilson, supra. These cases involved situations where the electorate had by law been exclusively white. The new regulations applied practically exclusively to Negroes because the exemption was extended to all registered whites and their posterity in perpetuity. In Lane v. Wilson, the court frankly discusses the problems of the amendment offered to cure this situation solely in terms of the Negro race. The inevitable result of the provisions struck down was a racially discriminatory result. It is not so here. This enactment applies to new white and Negro registrants alike.

If statistics of present voter registration as compared to census figures can create a climate that would make an otherwise wholesome and valid enactment void because of race discrimination, then every other requirement governing voting — whether newly enacted or covered with antiquity — would be similarly void on the same statistical basis. Each such enactment making any requirement for registration would necessarily affect more of one race than the other and thus under plaintiff’s theory, be invalid. If census figures are considered in the same sterile and unrealistic atmosphere, they demonstrate that race discrimination must be most flagrant in the states of the northern and midwestern portion of the nation because few, if any, Negroes can be found there.

Plaintiff contends that the good moral character requirement “facilitates” racial discrimination, but they do not say how, other than objecting to the lack of a statutory definition. It seems to us that a legislative definition, which could constitutionally bear more heavily on some of the undesirable racial traits peculiar to the Negro as a racial group, might constitute just such a “facility” instead of avoiding it. It is our view that the words are sufficiently direct and plain to be self-defining.

XIV.

The Complaint next turns its attack to the statutory law of the State of Mississippi. It alleges that the provisions of the last paragraph of Section 3209.6 (and 3209.7), Mississippi Code of 1942, Annotated, are unconstitutional and void as being in conflict with and. contrary to the requirements of Title-Ill of the Civil Rights Act of I960.⁷⁴ The provisions of this Act require election officers to retain certain voting records for a period of twenty-two months. The Mississippi statutes provide that, in eases where there is no appeal pending- and where a particular application has been waived or abandoned, “the registrar is not required to retain or preserve any records made under the provisions hereof.”

If this statute were to be construed as-requiring registrars to destroy records under the circumstances named, it would at most be in conflict with the Federal Statute (42 U.S.C. § 1974). It does not do so. The words “not required to retain” should not be interpreted to mean “permitted to destroy.” With this construction the State statutes do not in. any way conflict with the Federal enactment. If a registrar does not comply with the provisions of Title III, he cannot justify his noncompliance on the' basis of any compulsion derived from the Mississippi Act. It must be construed, as permissive only, since it is readily susceptible of that construction. In fact, we cannot see that it is susceptible of any other reasonable construction. These concluding paragraphs of Sections-3209.6 and 3209.7 are constitutional.

Section 3213 of the Mississippi' Code of 1942 ⁷⁵ makes it mandatory that, an applicant complete all blank spaces in the application form “properly and responsively” and sign the same, together with the required oath.

Section 3212.5 of the Mississippi Code of 1942 ⁷⁶ requires a registrar to endorse the word “passed” on the application form of qualified applicants, makes it the responsibility of the applicant to make inquiry to determine whether he or she has passed, and provides for the endorsement of the words “failed” or “not of good moral character” to be endorsed on unsuccessful application forms.

It is charged that these two sections '“facilitate” racial discrimination by establishing formal, technical or inconsequential errors or omissions as grounds for disqualification. We do not agree. 'The registrar is required by the statutes to make this endorsement on all forms of all applicants without regard to race. The statute also makes it the responsibility of all applicants to make inquiry to determine the status of their application. Again, these challenges are unaccompanied by any fact allegation that the statutes are directed against a racial trait. The proper and responsive completion by an applicant of a form is neutral on race, creed and color. The required endorsements cannot, in our opinion, constitute any facilitation of racial discrimination. If. anything, they would hinder it by requiring a more complete record of the action taken by the registrar, which would be available in the event of a challenge to his action.

Another ground of invalidity involves fhe numerical effect of the statutes. We have previously discussed and rejected this ground as a vehicle by which unconstitutional deprivation may be established in connection with our discussion of the good moral character requirements ■of Section 241-A of the Constitution. We adhere to those same views here.

It is next contended that these statutes •convert the application form into a hypo-technical and unreasonable examination which constitutes an arbitrary restriction on the exercise of the “right to vote.” It may be thought unnecessary to reiterate here the status of the Federal and State sovereignties in relationship to the right of suffrage, but it appears to us to be a matter of sufficient moment to warrant indulgence.

In Manor v. Happersett, 21 Wall. 162, 88 U.S. 162, 22 L.Ed. 627, the Court pointed out:

“For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage.”

In the case of United States v. Reese, 92 U.S. 214, 23 L.Ed. 563, the court stated:

“The Fifteenth Amendment does not confer the right of suffrage upon anyone.”

In McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869, it was stated ;•

“The right to vote intended to be protected refers to the right to vote as established by the laws and constitution of the state.”

In Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817, the court stated:

“The privilege to vote in any state is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. * * * In other words, the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution.”

As recently as Lassiter v. Northampton County Board of Elections, supra, the court stated:

“The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised.”

We assume that the State of Mississippi must believe that the information required on its voter application forms is proper and necessary information to determine the qualified or unqualified status of the applicant under its requirements. If it did not so believe, then the information should not be requested; but, believing it to be required, it seems to us that it is completely within its prerogative to demand that the form be properly and responsively completed and that the registrar make a full written record of his actions thereon. If it is an exacting examination, — which we do not determine it to be- — it is one which the statute requires to be administered without regard to race, creed or color. It is beyond the jurisdiction of this Court to question.

We do not find that these statutes vest unlimited discretion or arbitrary power in the registrar. The words “properly” and “responsively” indicate to this Court a definite enough standard for intelligent and consistent application. The completion of the oath and signature also appear to be normal requirements on their face. No tricky application form is alleged or exhibited. If it does, in fact, operate to “trip” applicants into a disqualifying omission, it again operates indiscriminately of race or color. Even if we thought it were an unwise requirement, we cannot for that reason alone find it to be unconstitutional. After a careful review of the statutes themselves in the light of all objections made, we are of the opinion that Section 3213 and Section 3212.5 of the Mississippi Code of 1942 are constitutional.

The next attack is made upon Section 3212.7 of’ the Mississippi Code of 1942 ⁷⁷ and Section 3217-01 through 3217-13 of the Mississippi Code of 1942.⁷⁸ Section 3212.7 requires the registrar to publish the name and address of every applicant for registration to vote, for two consecutive weeks. The cost of such publication is to be paid out of the general fund of the county. Fourteen days after the date of the last publication must be allowed by the registrar for challenge by any qualified elector of the county. After this period the registrar is required to proceed to determine the applicant’s qualifications.

Sections 3217-01 through 3217-13 prescribe the procedure for challenges and hearings concerning any challenges made.

These two statutes are alleged to be unconstitutional because they vest power and authority in white citizens to harass Negroes. Even so, it is likewise true that the statutes vest power and authority in Negro citizens to harass whites, in Negro citizens to harass Negroes, and in white citizens to harass whites. The choice as to whether to exercise the power conferred or not is one of purely private decision not subject to the mandates of the Fourteenth or Fifteenth Amendments. With regard to the contention that no objective standard is provided to limit the grounds of challenge, we disagree. The grounds are limited to the good moral character of the applicant and other requirements which the applicant must meet in order to be qualified to register to vote.

The challenge is made that the requirements are onerous, arbitrary and unreasonable. These challenges are directed to the legislature’s wisdom in the enactment of the statute and not to any permissible grounds of constitutional objection. We do not see in the grant of authority to the registrar to take the matter of a challenge under advisement any unlimited power to forestall registration on a racial basis. Surely the statute contemplates and must be interpreted to require reasonable action on the part of the administrative officer in the discharge of the duties conferred upon him under the authorities previously mentioned.⁷⁹ We cannot presume that he will not correctly and impartially render each citizen his due.

Here again we have statutes whose wisdom we are not free to debate. The State of Mississippi could certainly feel that each community should be advised of the names and addresses of its members who seek through the exercise of the franchise to control its political fate. It is certainly within the state’s power to determine that additional solemnity and formality should be added to the act of application for registration. We are unable to say that the requirements of these statutes bear no reasonable rela-üonship to a legitímate state interest. We, therefore, hold Section 3212.7 and Sections 3217-01 through 3217-13 to be valid and constitutional.

The Complaint might also be interpreted to challenge Section 3232 of the Mississippi Code of 1942 ⁸⁰ and Section 3209.6 of the Mississippi Code of 1942. Section 3232 was amended so as to eliminate the requirement for designation of the race of voters in county poll books. Section 3209.6, in addition to permitting destruction of records, was amended so as to make provision for the application form to contain a demonstration of good moral character.

In view of our ruling on the constitutionality of Section 241-A requiring good moral character as a prerequisite to registration, we deem it unnecessary to discuss further the contentions of the Complaint as to the last Code section. As to the section requiring the elimination of the designation of race from the poll books, we could state categorically that the new statute is constitutional, but it would be further pertinent to observe that this appears to the Court to be a situation where the state could be thought to be on the “horns of a dilemma.” If it left the designation of race a part of its requirements, it would be subject to criticism for making a record of race where the race of the elector was immaterial. Now, having acted to remove reference to race, it finds itself criticized for having done so.

The Supreme Court, this term, held that a state statute⁸¹ requiring that, in all primary, general or special elections, the nomination papers and ballots shall designate the race of candidates for elective office, violates the equal protection and due process clause of the Fourteenth Amendment or the Fifteenth Amendment to the Constitution of the United States.⁸²

We hold Section 3232 and Section 3209.6 to be valid and..constitutional.

In all of these statutory areas, we believe the question of validity must turn on a determination of the power of the state, not its supposed secret intentions or presumed improper motives. In the light of our comments above, we believe that it would be no more fitting to inquire into the motive or object of the legislature than it would be to permit such an inquiry to be made as to the motives of the judges of a court for making a decision, or the executive branch for taking or withholding executive action in any given situation.⁸³ As Mr. Justice Black cautioned in the case of Everson v. Board of Education of Ewing Township, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711:

“But we must not strike that state statute down if it is within the state’s constitutional power even though it approaches the verge of that power. See Interstate Consolidated Street Ry. Co. v. Commonwealth of Massachusetts, Holmes, J., supra 207 U.S. [79] at 85, 88, [28 S.Ct. 26, 27, 28, 52 L.Ed. 111].”

And see the discussion of this question in Darby, supra, 168 F.Supp. at pp. 176, et seq., and in Palmer v. Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108; Beers for Use of Platenius v. Arkansas, 20 How. 527, 15 L.Ed. 991; Memphis & C. Railroad Co. v. Tennessee, 101 U.S. 337, 25 L.Ed. 960; and Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842.

We would hardly feel that a proper sense of proportion was being observed if we did not draw out this already much too long opinion sufficiently to say that those who speak for the United States in this case do not propose to leave Mississippi’s Constitution and statutes wholly unrecognized. After having importuned this Court to strike down substantially all which the people and the legislature have written during the tedious, sometimes tragic, years in which they have endeavored to maintain a government of laws, the representatives of this Indestructible Union here pray that this Court set up a substitute system of voting qualifications for Negroes, asking that we

“7. Order said defendants to register as a voter any Negro applicant for registration who possesses the following qualifications for registering to vote and none of the disqualifications as set forth in the Mississippi Constitution of 1890:

“(a) He is a citizen not less than twenty-one years of age;

“(b) He has been a resident of the state, county and election district for the period prescribed by Mississippi law;

“(c) He is able to read;

“(d) He has not been convicted of any disqualifying crimes enumerated in the Constitution and laws of Mississippi and is not insane.”

The Complaint, as amended, thus fails to state a claim upon which any relief ■can be granted and should be dismissed with prejudice, and the relief prayed for .should be denied. A judgment accordingly, with costs, will be entered.

1 . This Court has met on two occasions with counsel for the various parties. On the first meeting we had an extensive pretrial and exploratory hearing during which the large number of lawyers and the Court discussed generally the questions presented and the procedural means by which they could best be approached. There was general discussion about the issues involved, the use of discovery procedures and other matters and tentative orders were entered which, by the action taken here, are rendered inoperable.

After a change in the personnel of the Court, another hearing with counsel was held and full argument was invited in which each litigant urged the procedures he thought desirable. The defendants had filed, prior to their answers, a number of motions attacking the constitutionality of some of the statutes relied upon by the plaintiffs when given the constructions placed on them by the plaintiff; and each defendant had filed a motion to dismiss the claim against it or him, on the ground that the complaint failed to state a claim, that the Court did not have jurisdiction of the subject matter or of some of the parties and had moved that they be heard in advance of any trial on the merits.

Following that argument and after correspondence between the Judges, two additional conferences were had. The plaintiff had answered in large volume the interrogatories propounded to them by certain of the defendants and had taken a number of depositions, but had not completed its discovery procedures. The defendants were claiming the right, if their motions to dismiss were denied, to begin their discoveries and to take the depositions of each of the registrars in the State of Mississippi or of prior registrars. It further appeared that no matters outside the pleadings had been presented to the Court, that no motion for summary judgment under Rule 12(e) had been made or the propriety of it suggested, and that no affidavit or counter affidavits had been filed which complied with the requirements of Rule 12(c) and 52 F.R.Civ.P. It was further found that the interrogatories had been answered and sworn to by various attorneys for the plaintiff and set forth the results of their investigations and were made up of legal or factual conclusions from hearsay evidence or were otherwise inadmissible in evidence.

We concluded that the case could be heard and decided much more expeditiously by considering the complaint and all well-pleaded averments, stripped of legal opinions and conclusions, as factually true and could reach a decision in keeping with accepted legal principles and could do justice to the parties as completely as if the contents of the answers to interrogatories and the depositions should be considered.

The defendants have pressed their motions to dismiss, claiming the right to be hoard before trial on the merits on such grounds as failure of the complaint to state a claim, nonjurisdiction of the subject matter or the parties, and like questions. We concluded that this position was sound and in the interest of justice and have therefore disposed of the case on the face of the pleadings, having rejected all of the depositions and interrogatories and the answers thereto (although none of them were ever offered in evidence or presented to the Court).

We think this is not in conflict with such cases as Conley v. Gibson, 365 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. Compare KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183; Battaglia v. General Motors Corp., 2 Cir., 169 F.2d 254, certiorari denied 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425; Flanders v. Coleman, 250 U.S. 223, 39 S.Ct. 472, 63 L.Ed. 948; Rhode Island v. Massachusetts, 12 Pet. 657, 659, 37 U.S. 657, 659, 9 L.Ed. 1233.

2 . “1971. Voting rights — Race, color, or previous condition not to affect right to vote * * *

“(d) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether the party aggrieved shall have exhausted any administrative or other remedies that may be provided by law. [71 Stat. 637, Sept. 9, 1957.]”

3 . Ҥ 1345. United States as plaintiff

“Except as otherwise provided by the Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress. June 25, 1948, c. 646, 62 Stat. 933.”

4 . Ҥ 2281. Injunction against enforcement of State statute; three-judge court required

“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title. June 25, 1948, c. 646, 62 Stat. 968.”

5 . “Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State.” (Now a part of 42 U.S.C. § 1971 (c)).

6 . “(a) All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.

“Intimidation, threats, or coercion

“(b) No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegates or Commissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate.

“Preventive relief; injunction; costs; State as party defendant

“(c) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or jirivilege secured by subsection (a) or (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. In any proceeding hereunder the United States shall be liable for costs tlie same as a private person. Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also bo deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State. [74 Stat. 90, May 6,1960.]”

7 . Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253; Halliburton Co. v. Norton Drilling Co., 5 Cir., 302 F.2d 431. Modern practice treats such motions as performing every office of the former demurrer, but as unhampered by any of its technical rules. The Complaint must be viewed in a light most favorable to the plaintiff.

8 . “Plaintiffs did not submit the ease to be decided upon the merits upon the bill, answers and affidavits. Defendants’ motion to dismiss, like the demurrer for which it is a substitute (Equity Rule 29, 28 U.S.C.A. following section 723) was addressed to the sufficiency of the allegations of the bill. For the purpose of that motion, the facts set forth in the bill stood admitted. For the purpose of that motion, the court was confined to the bill and was not at liberty to consider the affidavits or the other evidence produced upon the application for an interlocutory injunction.” Polk Co. v. Glover, 305 U.S. 5, 59 S.Ct. 15, 83 L.Ed. 6; as to the rejection of conclusionary allegations of fact and law, see Newport News Shipbuilding & Dry Dock Co. v. Schauffler, 303 U.S. 54, 58 S.Ct. 466, 82 L.Ed. 646, and Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111.

9 . See Note 5.

10 . See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524.

11 . E.g., the United States Supreme Court cases of: M’Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204; Texas v. White, 7 Wall. 700, 19 L.Ed. 227; Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185; and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; and a number of opinions from the United States Court of Appeals for tlie Fifth Circuit, the most recent of which is St. Helena Parish School Board v. Hall, 287 F.2d 376.

12 . Note 11, supra.

13 . 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5.

14 . Note 10, supra.

¹⁵

¹⁶

17 . See also Peay v. Cox, 5 Cir., 190 F.2d 123, 125, certiorari denied, 342 U.S. 896, 72 S.Ct. 230, 96 L.Ed. 671, a voting case which came up from Mississippi.

18 . 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982.

19 . 323 F.2d 733.

20 . 301 F.2d 818.

21 . 314 F.2d 767.

22 . Civil Action No. 1604, Hattiesburg Division, Southern District of Mississippi, commenced January 19, 1961, decided by the District Court January 15, 1962, which court entered an order adjudicating that “Case No. 1604 [is] abandoned and effectually non-existent,” and the case was passed to the files. The reason assigned was that the United States had brought a second suit involving the same subject matter.

23 . Number 19576, United States v. Lynd, et al., begun July 6, 1961 and decided by the Court of Appeals April 10, 1962, 301 F.2d 818.

24 . “The District Court erred in refusing to grant the Attorney General’s application for an order, pursuant to § 305 of Title III of the Civil Rights Act of 1960 (42 U.S.C. § 1974(d), 74 Stat. 88), requiring the registrar of elections of Forrest County, Mississippi to permit the Attorney General to inspect the voting records of that county.”

25 . 314 F.2d at 771.

26 . 206 F.Supp. 446.

²⁷

²⁸

29 . The recent three-judge district court, . in the case of United States v. Louisiana, (District Louisiana, Baton Rouge Division, 225 F.Supp. 353) was apparently led into the same error in ’ its holding that the State may be joined as a party defendant in a proceeding under 42 U.S.C.A. § 1971. It refers to Lynd and Dogan as authority.

30 . 274 U.S. 160, 47 S.Ct. 553, 71 L.Ed. 978.

31 . 26 F.Supp. 941.

32 . (Again, citations have been omitted for the sake of brevity.) See also Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281.

33 . See Note 36 infra.

34 . See Federal Trade Commission v.’ Claire Furnace Co., supra; Massachusetts Farmers Defense Committee v. United States, supra; and Kresge Co. v. Ottinger, supra.

35 . What is here stated with regard to the State Election Commissioners would apply with equal force to the defendant, State of Mississippi, so long as the actual enforcement officials, the County Registrars, remained in office and subject to suit.

36 . Mississippi Code of 1942, Annotated, § 3212. entitled “Registrar to register voters,” states:

“The registrar shall register on the registration books of the election district of the residence of such person any one appearing, before him, and being, upon examination, found, in compliance with Section 244 of the ' Constitution, as amended, and in compliance with Section 241-A of the Constitution of Mississippi to be entitled to be registered as an elector, upon such person taking and subscribing the oath required by Section 242 of the Constitution of Mississippi; but persons who may be entitled to register under the provisions of Section 251 of the Constitution of Mississippi, who would be otherwise disqualified by reason of age, may take the oath as modified by that circumstance, and the subscription of the oath shall be by the elector writing his name in the proper column in the registration book.”

37 . Registration to vote is an individual process of showing qualification oi- lack of qualification on a case by case basis. It cannot be the subject of class action relief. Reddix v. Lucky, 5 Cir., 252 F.2d 930.

38 . The complaint states that the Court has jurisdiction “under 42 U.S.C. § 1971 (d), 28 U.S.C. § 1345, and 28 U.S.C. § 2281.” Neither party makes any serious argument concerning § 1345, which vests •district courts with jurisdiction of all civil actions “commenced by the United States, or by any agency or officer thereof expressly authorized to sue T>y Act of Congress." The controversy revolves around the words in the statute which we have italicized.

39 . Volume 49, No. 10, 1963, of the American Bar Association Journal contains an excellent article on “Free Elections and the Power of Congress Over Voter Qualifications.” Therein is reproduced the .paper by Dr. Wilfred J. Ritz, Professor .of Law, Washington and Lee University, which won first place in the 1962 Samuel Pool Weaver Constitutional Law Essay ■Competition conducted annually by the American Bar Foundation.

We draw extensively from this paper in this portion of the opinion. Dr. Ritz ■cited many times from Farrand, “The Records of the Federal Convention of 1787,” 4 Vols. (Rev. ed. 1937).

While the article deals alone with the power of Congress, most of its contents apply equally to the Courts.

40 . 1 Farrand 20-21, 27-28.

41 . 1 Farrand, 46, 47-50, 54-55, 56, 60.

42 . 1 Farrand 118, 124, 130, 132-138, 140-141, 142-144, 145, 147.

43 . 1 Farrand, 353, 358-360, 364-365, 367, 368.

44 . 2 Farrand 229, 239-242, 244.

45 . 2 Farrand 651, 653.

46 . Vol. 49, No. 10, A.B.A.J. page 951.

47 . Id.

48 . 49 A.B.A.J., No. 10, page 954.

49 . “Section 244. ' Every elector sliall, in addition to the foregoing qualifications be able to read and write any section of tbe Constitution of this State and give a reasonable interpretation thereof to the county registrar. He shall demonstate to the county registrar a reasonable understanding of the duties and obligations of citizenship under a constitutional form of government.

“The person applying to register shall make a sworn, written application for registration on a form to be prescribed by the state board of election commissioners, exhibiting therein the essential facts and qualifications necessary to show that he is entitled to register and vote, said application to be entirely written, dated and signed by the applicant in the presence of the county registrar, without assistance or suggestion from any person or memorandum whatever; provided, however, that if the applicant is unable to write his application by reason of physical disability, the same, upon his oath of such disability, shall be written at his unassisted dictation by the county registrar.

“Any new or additional qualifications herein imposed shall not be required of any person who was a duly registered and qualified elector of this state prior to January 1, 1954.

“The Legislature shall have the power to enforce the provisions of this section by appropriate legislation.”

“Section 241-A. In addition to all other qualifications required of a person to be entitled to register for the purpose of becoming a qualified elector, such person shall be of good moral character.

“The Legislature shall have the power to enforce the provisions of this section by appropriate legislation.”

50 . National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893.

51 . United States v. National Dairy Products Corp., et al., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561.

52 . Merchants’ Insurance Co. v. Ritchie, 5 Wall. 541, 18 L.Ed. 540.

53 . United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209; United States v. Oregon, 366 U.S. 643, 81 S.Ct. 1278, 6 L.Ed.2d 575.

54 . Gemsco, Inc. v. Walling, 324 U.S. 244, at 260, 65 S.Ct. 605, at 614, 89 L.Ed. 921. Cf. Davis v. Schnell, D.C., 81 F.Supp. 872, 878:

"When a word or phrase in a statute or constitution is ambiguous, it is the duty of the court, in construing the meaning of that word or phrase, to attempt to determine whether an exact meaning was intended and if so, to ascertain that meaning.” (Emphasis added.)

55 . Duke Power Co. v. Greenwood County, 4 Cir., 91 F.2d 665, 672; Affirmed 302 U.S. 485, 58 S.Ct. 306, 82 L.Ed. 381.

56 . Except for Subsection 4 of Section II, relating to newspaper exhibits, because that question is not before us here.

57 . In Note 7 appearing at 360 U.S. 52, 79 S.Ct. 990, 3 L.Ed.2d 1072, the court pointed out that 19 states have some sort of literacy requirement as a prerequisite to voter eligibility. Mississippi’s requirements are among those fully de- . scribed without adverse comment or observation.

58 . “Where proof of literacy or an understanding of other subjects is required by valid provisions of State law, the answer of the applicant, if written, shall be included in such report to the court; if oral, it shall be taken down stenographically and a transcription included in such report to the court.”

“The applicant’s literacy and understanding of other subjects shall be determined solely on the basis of answers included in the report of the voting referee.”

59 . A review procedure which the Court of Appeals of the Fifth Circuit, in Peay v. Cox, supra, characterized thus:

“[T]he remedy is wholly administrative, simple, and cheap and ought to be exhausted plainly.”

60 . This opinion lias proven confusing to a number of courts, as evidenced by their varied descriptions of its holding. A careful reading of the opinion discloses that the Supreme Court did not hold the municipal ordinance unconstitutional. They did order Tick Wo released and the criminal charge against him dismissed, but the basis for their ruling was because the arbitrary statute was found to have been applied by the Board of Supervisors in an unconstitutional manner.

61 . Rule 5.

62 . Rule 77.

63 . Rule 10.

64 . This variously appears in Rules 6, 7 or 8 of each of the Circuits except for the Fifth. In this Circuit, admission to practice before a District Court is required, and since this Mississippi district requires admission to the State Courts of Mississippi, this requirement is imported into the rules of the Fifth Circuit, at least for Mississippi practitioners in the Southern District.

65 . 8 U.S.C. § 1101, § 1427. It should be noted that although § 1101 sets out several criteria for determination of good moral character, it concludes with the statement: “The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.”

66 . Chapter 143, Section 9-12, Gon.Stat-utes of Conn., Rev.1958.

67 . Constitution, Section 180, Article 8, Constitution of 1901.

68 . Constitution, Section 2-704 (6398) Paragraph IV, Const, art. 2, § 1. (This is one of the alternative provisions for those who cannot read and write.)

69 . LSA-Constitution, Article VIII, Section 1(c). See also LSA-Revised Statutes, Vol. 14, Ch. 1, Title 18, Section 31.

70 . All references are to sections of the Mississippi Code of 1942, Annotated.

71 . We agree with the court in Raabe v. State, 7 Ohio App. 119, when it stated that the phrase “good moral character” defines itself as accurately as the Legislature could define it by any other terms that it might employ along that lino. Cf. Petition of Gani, D.C., 86 F.Supp. 683.

72 . Williams v. Mississippi, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012.

73 . Williams v. Mississippi, supra; and Snowden v. Hughes, supra

74 . 42 U.S.C. § 1971-1974e.

75 . House Bill No. 900, 1962 Session.

76 . House Bill No. 903, 1962 Session.

77 . House Bill No. 822, 1962 Session.

78 . House Bill No. 904, 1962 Session.

79 . Cf. Snowden v. Hughes, supra.

80 . House Bill No. 901, 1962 Session.

81 . LSA-Revised Statutes (1960 Supp.) § 18:1174.1.

82 . Anderson v. Martin, 375 U.S. 399, 84 S. Ct. 454, 11 L.Ed.2d 430.

83 . Fernandez v. Wiener, 326 U.S. 340, 66 S.Ct. 178, 90 L.Ed. 116; Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772. See also the article and cases cited in Footnotes 21-23 of the opinion in Darby v. Daniel, supra.