*356 entitled to vote under the provision of the knew or believed these colored persons were entitled to vote, and their purpose was to unfairly and fraudulently deny the right of suffrage to them, or any of them entitled thereto, on account of their race and color, then their purpose was a corrupt one, and they cannot be shielded by their official positions." The questions which the court below asks are these: "1. Was the amendment to the Constitution of Oklahoma, heretofore set forth, valid? a member of Congress in Oklahoma unless they were able to read and write any section of the Constitution of Oklahoma, negro citizens of the United States who were otherwise qualified to vote for a qualified candi "2. Was that amendment void in so far as the assumption that this claim was justi- it attempted to debar from the right or privfied and that the election officers had violat-ilege of voting for a qualified candidate for ed the 15th Amendment in denying the right to vote, this prosecution, as we have said, was commenced. At the trial the court instructed that by the 15th Amendment the states were prohibited from discriminating as to suffrage because of race, color, or pre-date for a member of Congress in that state, vious condition of servitude, and that Congress, in pursuance of the authority which was conferred upon it by the very terms of the Amendment, to enforce its provisions had enacted the following (Rev. Stat. § 2004, Comp. Stat. 1913, § 3966): "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, 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, or usage, or regulation of any state or territory, or by or under its authority, to the contrary notwithstanding." It then instructed as follows: but who were not, and none of whose lineal ancesters was, entitled to vote under any form of government on January 1, 1866, or at any time prior thereto, because they were then slaves?" As these questions obviously relate to the provisions concerning suffrage in the origi nal Constitution and the amendment to those provisions which form the basis of the controversy, we state the text of both. The original clause, so far as material, was this: "The qualified electors of the state shall be male citizens of the United States, male citizens of the state, and male persons of Indian descent native of the United States, who are over the age of twenty-one years, who have resided in the state one year, in the county six months, and in the election precinct thirty days, next preceding the election at which any such elector offers to vote." And this is the amendment: "The state amendment which imposes the test of reading and writing any section of the state Constitution as a condition to voting to persons not, on or prior to January 1, 1866, entitled to vote under some form of government, or then residents in some foreign nation, or a lineal descendant of such person, is not valid, but you may consider it in so far as it was in good faith relied and acted upon by the defendants in ascertaining their intent and motive. If you believe from the evidence that the defendants formed a common design and cooperated in denying the colored voters of Union township precinct, or any of them, entitled to vote, the privilege of voting, but this was due to a mistaken belief sincerely entertained by the defendants as to the qualifications of the voters, that is, if the motive actuating the defendants was honest, and they simply erred in the conception of their duty, then the criminal intent requi-tration, provided registration be required. site to their guilt is wanting and they cannot be convicted. On the other hand, if they "No person shall be registered as an elector of this state or be allowed to vote in any election held herein, unless he be able to read and write any section of the Consti tution of the state of Oklahoma; but no person who was, on January 1st, 1866, or any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his inability to so read and write sections of such Constitution. Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of regis Should registration be dispensed with, the provisions of this section shall be enforced 1914. GUINN v. UNITED STATES. 929 by the precinct election officers when electors | the legislative authority an occult motive to apply for ballots to vote." violate the Amendment, or by assuming that an exercise of the otherwise lawful power may be invalidated because of conclusions concerning its operation in practical execution and resulting discrimination arising therefrom, albeit such discrimination was not expressed in the standard fixed, or fairly to be implied, but simply arose from inequalities naturally inhering in those who must come within the standard in order to enjoy the right to vote. Considering the questions in the light of the text of the suffrage amendment it is apparent that they are twofold because of the twofold character of the provisions as to suffrage which the amendment contains. The first question is concerned with that provision of the amendment which fixes a standard by which the right to vote is given upon conditions existing on January 1, 1866, and relieves those coming within that standard from the standard based on a On the other hand, the United States deliteracy test which is established by the nies the relevancy of these contentions. It other provision of the amendment. The sec- says state power to provide for suffrage is ond question asks as to the validity of the not disputed, although, of course, the auliteracy test and how far, if intrinsically thority of the 15th Amendment and the valid, it would continue to exist and be limit on that power which it imposes is inoperative in the event the standard based sisted upon. Hence, no assertion denying upon January 1, 1866, should be held to be the right of a state to exert judgment and illegal as violative of the 15th Amendment. discretion in fixing the qualification of To avoid that which is unnecessary let us suffrage is advanced, and no right to ques at once consider and sift the propositions tion the motive of the state in establish of the United States on the one hand, and ing a standard as to such subjects under of the plaintiffs in error, on the other, in such circumstances, or to review or superorder to reach with precision the real and vise the same, is relied upon, and no power final question to be considered. The United to destroy an otherwise valid exertion of auStates insists that the provision of the thority upon the mere ultimate operation of amendment which fixes a standard based the power exercised is asserted. And apupon January 1, 1866, is repugnant to the plying these principles to the very case in prohibitions of the 15th Amendment be- hand, the argument of the government in cause in substance and effect that provision, substance says: No question is raised by if not an express, is certainly an open, the government concerning the validity of repudiation of the 15th Amendment, and the literacy test provided for in the amendhence the provision in question was stricken ment under consideration as an independent with nullity in its inception by the self-standard since the conclusion is plain that operative force of the Amendment, and, as that test rests on the exercise of state judgthe result of the same power, was at all sub-ment, and therefore cannot be here assailed sequent times devoid of any vitality what ever. either by disregarding the state's power to judge on the subject, or by testing its motive in enacting the provision. The real question involved, so the argument of the government insists, is the repugnancy of the standard which the amendment makes, based upon the conditions existing on January 1st, 1866, because on its face and inherently considering the substance of things, that standard is a mere denial of the restrictions imposed by the prohibitions of the 15th Amendment, and by necessary result re-creates and perpetuates the very conditions which the Amendment was intended to destroy. From this it is urged that no legitimate discretion could have entered into the fixing of such standard which involved only the determination to directly set at naught or by indirection avoid the commands of the Amendment. And it is insisted that nothing contrary to these prop For the plaintiffs in error, on the other hand, it is said the states have the power to fix standards for suffrage, and that power was not taken away by the 15th Amendment, but only limited to the extent of the prohibitions which that Amendment established. This being true, as the "standard fixed does not in terms make any discrimination on acount of race, color, or previous condition of servitude, since all, whether negro or white, who come within its requirements, enjoy the privilege of voting, there is no ground upon which to rest the contention that the provision violates the 15th Amendment. This, it is insisted, must be the case unless it is intended to expressly deny the state's right to provide a standard for suffrage, or what is equivalent thereto, to assert: (a) that the judgment of the state, exercised in the exertion of that pow-ositions is involved in the contention of the er, is subject to Federal judicial review or supervision, or (b) that it may be questioned and be brought within the prohibitions of the Amendment by attributing to 35 S. C.-59. government that if the standard which the suffrage amendment fixes, based upon the conditions existing on January 1, 1866, be found to be void for the reasons urged, the 898. 698. 198. "Section 2. The Congress shall have power to enforce this article by appropriate legislation." other and literacy test is also void, since that contention rests not upon any assertion on the part of the government of any abstract repugnancy of the literacy test to (a) Beyond doubt the Amendment does the prohibitions of the 15th Amendment, not take away from the state governments but upon the relation between that test and in a general sense the power over suffrage the other, as formulated in the suffrage which has belonged to those governments amendment, and the inevitable result which from the beginning, and without the possesit is deemed must follow from holding it to sion of which power the whole fabric upon be void if the other is so declared to be. which the division of state and national Looking comprehensively at these con- authority under the Constitution and the tentions of the parties it plaintly results organization of both governments rest would that the conflict between them is*much nar- be without support, and both the authority rower than it would seem to be because the of the nation and the state would fall to premise which the arguments of the plain- the ground. In fact, the very command tiffs in error attribute to the propositions of the Amendment recognizes the possession of the United States is by it denied. On of the general power by the state, since the the very face of things it is clear that the Amendment seeks to regulate its exercise United States disclaims the gloss put upon as to the particular subject with which it its contentions by limiting them to the deals. propositions which we have hitherto pointed out, since it rests the contentions which it makes as to the assailed provision of the suffrage amendment solely upon the ground that it involves an unmistakable, although | it may be a somewhat disguised, refusal to give effect to the prohibitions of the 15th Amendment by creating a standard which, it is repeated, but calls to life the very conditions which that Amendment was adopted to destroy and which it had destroyed. 598. The re (b) But it is equally beyond the possibility of question that the Amendment in express terms restricts the power of the United States or the states to abridge or deny the right of a citizen of the United States to vote on account of race, color, or previous condition of servitude. striction is coincident with the power and prevents its exertion in disregard to the command of the Amendment. But while this is true, it is true also that the AmendThe questions then are: (1) Giving to ment does not change, modify, or deprive the propositions of the government the in- the states of their full power as to suffrage terpretation which the government puts except, of course, as to the subject with upon them, and assuming that the suffrage which the Amendment deals and to the exprovision has the significance which the tent that obedience to its command is necesgovernment assumes it to have, is that pro- sary. Thus the authority over suffrage vision as a matter of law repugnant to the which the states possess and the limitation 15th Amendment? which leads us, of course, which the Amendment imposes are co-ordito consider the operation and effect of the nate and one may not destroy the other 15th Amendment. (2) If yes, has the as-without bringing about the destruction of sailed amendment in so far as it fixes a standard for voting as of January 1, 1866, the meaning which the government attributes to it? which leads us to analyze and interpret that provision of the amendment. (3) If the investigation as to the two prior subjects establishes that the standard fixed as of January 1, 1866, is void, what, if any, effect does that conclusion have upon the literacy standard otherwise established by the amendment? which involves determining whether that standard, if legal, may survive the recognition of the fact that the other, or 1866, standard, has not and never had any legal existence. Let us consider these both. (c) While in the true sense, therefore, the Amendment gives no right of suffrage, it? was long ago recognized that in operation its prohibition might measurably have that effect; that is to say, that as the command of the Amendment was self-executing and reached without legislative action the conditions of discrimination against which it was aimed, the result might arise that, as a consequence of the striking down of a discriminating clause, a right of suffrage would be enjoyed by reason of the generic character of the provision which would remain after the discrimination was stricken out. Ex parte Yarbrough, 110 U. S. 651, 1. The operation and effect of the 15th 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Neal v. Amendment. This is its text: subjects under separate headings. "Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Delaware, 103 U. S. 370, 26 L. ed. 567. A familiar illustration of this doctrine resulted from the effect of the adoption of the Amendment on state Constitutions in which, at the time of the adoption of the Amendment, the right of suffrage was con *364 ferred on all white male citizens, since by We have difficulty in finding words to the inherent power of the Amendment the more clearly demonstrate the conviction we word "white" disappeared and therefore all entertain that this standard has the characmale citizens, without discrimination on teristics which the government attributes account of race, color, or previous condi- to it than does the mere statement of the tion of servitude, came under the generic text. It is true it contains no express words grant of suffrage made by the state. of an exclusion from the standard which it establishes of any person on account of race, color, or previous condition of servitude, prohibited by the 15th Amendment, but the standard itself inherently brings. that result into existence since it is based purely upon a period of time before the enactment of the 15th Amendment, and makes that period the controlling and dominant test of the right of suffrage. In other words, we seek in vain for any ground which would sustain any other interpretation but that the provision, recurring to the conditions existing before the 15th Amendment was adopted and the continuance of which the 15th Amendment prohibited, proposed by in substance and effect lifting those conditions over to a With these principles before us how can there be room for any serious dispute concerning the repugnancy of the standard based upon January 1, 1866 (a date which preceded the adoption of the 15th Amendment), if the suffrage provision fixing that standard is susceptible of the significance which the government attributes to it? Indeed, there seems no escape from the conclusion that to hold that there was even possibility for dispute on the subject would be but to declare that the 15th Amendment not only had not the self-executing power which it has been recognized to have from the beginning, but that its provisions were wholly inoperative because susceptible of being rendered inapplicable by mere forms of expression embodying no exercise of judg-period of time after the Amendment, to ment and resting upon no discernible reason other than the purpose to disregard the prohibitions of the Amendment by creating a standard of *voting which, on its face, was in substance but a revitalization of conditions which, when they prevailed in the past, had been destroyed by the self-operative force of the Amendment. 2. The standard of January 1, 1866, fixed in the suffrage amendment and its signifi cance. make them the basis of the right to suffrage conferred in direct and positive disregard of the 15th Amendment. And the same result, we are of opinion, is demonstrated by considering whether it is possible to discover any basis of reason for the standard thus fixed other than the purpose above stated. We say this because we are unable to discover how, unless the prohibitions of the 15th Amendment were considered, the slightest reason was afforded for basing the classification upon a period of time prior to the 15th Amendment. Certainly it cannot be said that there was any peculiar necromancy in the time named which engendered attributes affecting the qualification to vote which would not exist at another and different period unless the 15th Amendment was in view. While these considerations establish that the standard fixed on the basis of the 1866 test is void, they do not enable us to reply even to the first question asked by the court below, since to do so we must consider the The inquiry, of course, here is, Does the amendment as to the particular standard which this heading embraces involve the mere refusal to comply with the commands of the 15th Amendment as previously stated? This leads us, for the purpose of the analysis, to recur to the text of the suffrage amendment. Its opening sentence fixes the literacy standard which is allInclusive, since it is general in its expression and contains no word of discrimination on account of race or color or any other reason. This, however, is immediately followed by the provisions creating the stand-literacy standard established by the suffrage ard based upon the condition existing on January 1, 1866, and carving out those coming under that standard from the inclusion in the literacy test which would have controlled them but for the exclusion thus expressly provided for. The provision is this: "But no person who was, on January 1st, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his inability to so read and write sections of such Constitution." amendment and the possibility of its surviving the determination of the fact that the 1866 standard never took life, since it was void from the beginning because of the operation upon it of the prohibitions of the 15th Amendment. And this brings us to the last heading: 3. The determination of the validity of the literacy test and the possibility of its surviving the disappearance of the 1866| standard with which it is associated in the* suffrage amendment. No time need be spent on the question of the validity of the literacy test, consid 898. naught if, on the obliteration of the one standard by the force of the 15th Amendment, the other standard should be held to continue in force. The reasons previously stated dispose of the case and make it plain that it is our duty to answer the first question, No, and the second, Yes; but before we direct the entry of an order to that effect, we come briefly to dispose of an issue the consideration of which we have hitherto postponed from a desire not to break the continuity of discussion as to the general and important subject before us. ered alone, since, as we have seen, its estab-mand which would be virtually set at lishment was but the exercise by the state of a lawful power vested in it, not subject to our supervision, and, indeed, its validity is admitted. Whether this test is so connected with the other one relating to the situation on January 1, 1866, that the invalidity of the latter requires the rejection of the former, is really a question of state law; but, in the absence of any decision on the subject by the supreme court of the state, we must determine it for ourselves. We are of opinion that neither forms of classification nor methods of enumeration should be made the basis of striking down a provision which was independently legal, In various forms of statement not chaland therefore was lawfully enacted, because lenging the instructions given by the trial of the removal of an illegal provision with court concretely considered, concerning the which the legal provision or provisions may liability of the election officers for their have been associated. We state what we official conduct, it is insisted that, as in hold to be the rule thus strongly because we connection with the instructions the jury are of opinion that on a subject like the one was charged that the suffrage amendment under consideration, involving the establish- was unconstitutional because of its repugment of a right whose exercise lies at the nancy to the 15th Amendment, therefore, very basis of government, a much more ex- taken as a whole, the charge was erroneous. acting standard is required than would ordi- But we are of opinion that this contention narily obtain where the influence of the is without merit, especially in view of the declared unconstitutionality of one provi- doctrine long since settled concerning the sion of a statute upon another and consti- self-executing power of the 15th Amendtutional provision is required to be fixed.ment, and of what we have held to be the Of course, rigorous as is this rule and imperative as is the duty not to violate it, it does not mean that it applies in a case where it expressly appears that a contrary conclusion must be reached if the plain let ter and necessary intendment of the provision under consideration so compels, or where such a result is rendered necessary because to follow the contrary course would give rise to such an extreme and anomalous situation as would cause it to be impossible to conclude that it could have been, upon any hypothesis whatever, within the mind of the law-making power. nature and character of the suffrage amendment in question. The contention concerning the inapplicability of § 5508, Revised Statutes, now § 19 of the Penal Code, or of its repeal by implication, is fully answered by the ruling this day made in United States v. Mosley, No. 180, 238 U. S. 383, 59 L. ed., 35 Sup. Ct. Rep. 904. We answer the first question, No, and the second question, Yes. And it will be so certified. Mr. Justice McReynolds took no part in the consideration and decision of this case. (238 U. S. 368) CHARLES E. MYERS and A. Claude Kalmey, Plffs. in Err., V. Does the general rule here govern, or is the case controlled by one or the other of the exceptional conditions which we have just stated, is, then, the remaining question to be decided. Coming to solve it we are of opinion that by a consideration of the text of the suffrage amendment in so far as it deals with the literacy test, and to the extent that it creates the standard CHARLES E. MYERS and A. Claude Kal based upon conditions existing on January 1, 1866, the case is taken out of the general rule and brought under the first of the exceptions stated. We say this because, in our opinion, the very language of the suffrage amendment expresses, not by implication nor by forms of classification nor by the order in which they are made, but by direct and positive language the command that the persons embraced in the 1866 standard should not be, under any conditions, subjected to the literacy test,--a com JOHN B. ANDERSON. (No. 8.) mey, Plffs. in Err., For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 298. |