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ferred on all white malo citizens, sinco 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

With these principles before us how can establishes of any person on account of there be room for any serious dispute con- race, color, or previous condition of servi. cerning the repugnancy of the standard tude, prohibited by the 15th Amendment, based upon January 1, 1866 (a date which but the standard itself inherently brings, preceded the adoption of the 15th Amend that result into existence since it is based ment), if the suffrage provision fixing that "purely upon a period of time before the standard is susceptible of the significance enactment of the 15th Amendment, and which the government attributes to it? In- makes that period the controlling and deed, there seems no escape from the con- dominant test of the right of suffrage. clusion that to hold that there was even In other words, we seek in vain for any possibility for dispute on the subject would ground which would sustain any other be but to declare that the 15th Amendment interpretation but that the provision, re not only had not the self-executing power curring to the conditions existing before which it has been recognized to have from the 15th Amendment was adopted and the the beginning, but that its provisions were continuance of which the 15th Amendment wholly inoperative because susceptible of prohibited, proposed by in substance and being rendered inapplicable by mere forms effect lifting those conditions over to a of expression embodying no exercise of judg. period of time after the Amendment, to ment and resting upon no discernible reason make them the basis of the right to suffrage other than the purpose to disregard the pro- conferred in direct and positive disregard hibitions of the Amendment by creating a of the 15th Amendment. And the same restandard of voting which, on its face, was sult, we are of opinion, is demonstrated by in substance but a revitalization of condi- considering whether it is possible to distions which, when they prevailed in the cover any basis of reason for the standard past, had been destroyed by the self-opera- thus fixed other than the purpose above tive force of the Amendment.

stated. We say this because we are unable 2. The standard of January 1, 1866, fixed to discover how, unless the prohibitions of in the suffrage amendment and its signifi- the 15th Amendment were considered, the

slightest reason was afforded for basing The inquiry, of course, here is, Does the the classification upon a period of time prior amendment as to the particular standard to the 15th Amendment. Certainly it canwhich this heading embraces involve the not be said that there was any peculiar mere refusal to comply with the commands necromancy in the time named which enof the 15th Amendment as previously gendered attributes affecting the qualificastated! This leads us, for the purpose of tion to vote which would not exist at anthe analysis, to recur to the text of the other and different period unless the 16th suffrage amendment. Its opening sentence Amendment was in view. fixes the literacy standard which is all- While these considerations establish that Inclusive, since it is general in its expres- the standard fixed on the basis of the 1866 sion and contains no word of discrimination test is void, they do not enable us to reply an account of race or color or any other even to the first question asked by the court reason. This, however, is immediately fol- below, since to do so we must consider the lowed by the provisions creating the stand- literacy standard established by the suffrage ard based upon the condition existing on amendment and the possibility of its surJanuary 1, 1866, and carving out those com- viving the determination of the fact that ing under that standard from the inclusion the 1866 standard never took life, since it in the literacy test which would have con- was void from the beginning because of the trolled them but for the exclusion thus ex- operation upon it of the prohibitions of the pressly provided for. The provision is this: 15th Amendment. And this brings us to

"But no person who was, on January 1st, the last heading: 1866, or at any time prior thereto, entitled 3. The determination of the validity of to vote under any form of government, or the literacy test and the possibility of its who at that time resided in some foreign surviving the disappearance of the 1866 nation, and no lineal descendant of such standard with which it is associated in the person, shall be denied the right to register suffrage amendment. and vote because of his inability to so read No time need be spent on the question and write sections of such Constitution." of the validity of the literacy test, consid

oamce.

.308

ered alone, since, as we have seen, its estab- mand which would be virtually set at lishment was but the exercise by the state naught if, on the obliteration of the one of a lawful power vested in it, not subject standard by the force of the 15th Amendto our supervision, and, indeed, its validity ment, the other standard should be held to is admitted. Whether this test is so con- continue in force. nected with the other one relating to the The reasons previously stated dispose of situation on January 1, 1866, that the in the case and make it plain that it is our validity of the latter requires the rejection duty to answer the first question, No, and of the former, is really a question of state the second, Yes; but before we direct the law; but, in the absence of any decision on entry of an order to that effect, we come the subject by the supreme court of the briefly to dispose of an issue the considerastate, we must determine it for ourselves. tion of which we have hitherto postponed We are of opinion that neither forms of from a desire not to break the continuity classification nor methods of enumeration of discussion as to the general and imshould be made the basis of striking down a portant subject before us. 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 repug. ment 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 im- nature and character of the suffrage amend. perative as is the duty not to violate it, it ment in question. The contention concerndoes not mean that it applies in a case ing the inapplicability of $ 5508, Revised where it expressly appears that a contrary Statutes, now § 19 of the Penal Code, or of conclusion must be reached if the plain let. its repeal by implication, is fully answered ter and necessary intendment of the provi- by the ruling this day made in United sion under consideration so compels, or States v. Mosley, No. 180, 238 U, S. 383, 59 where such a result is rendered necessary L. ed. 35 Sup. Ct. Rep. 904. because to follow the contrary course would We answer the first question, No, and the give rise to such an extreme and anomalous second question, Yes. situation as would cause it to be impossible And it will be so certified. to conclude that it could have been, upon

Mr. Justice McReynolds took no part in any hypothesis whatever, within the mind of the law-making power.

the consideration and decision of this case. * Does the general rule here govern, or is the case controlled by one or the other of

(238 U. S. 368) the exceptional conditions which we have CHARLES E. MYERS and A. Claude Kal. just stated, is, then, the remaining ques

mey, Plffs. in Err., tion to be decided. Coming to solve it we are of opinion that by a consideration of JOHN B. ANDERSON. (No. 8.) 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 Kat based upon conditions existing on Janu

mey, Piffs. in Err., ary 1, 1866, the case is taken out of the

WILLIAM H. HOWARD. (No. 9.) 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 im- CHARLES E. MYERS and A. Claude Kalplication nor by forms of classification nor

mey, Piffs. in Err., by the order in which they are made, but

ROBERT BROWN. (No. 10.) by direct and positive language the com

ELECTIONS ($ 104*)-OFFICERS-LIABILITY mand that the persons embraced in the 1866

DENYING SUFFRAGE TO NEGRO CITI. standard should not be, under any conditions, subjected to the literacy test,--a com- 1. State election officials who,

V.

v.

ZENS.

com

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

cases,

T

formably to a state statute, deprive negro fications for voters at municipal elections citizens of their right to vote secured by in Annapolis, does not relieve the election U. S. Const., 15th Amend., are made liable officers appointed under that statute from to such negro citizens for the resulting dam- liability under U. S. Rev. Stat. § 1979, ages by U. S. Rev. Stat. § 1979, Comp. Stat. Comp. Stat. 1913, § 3932, for denying the 1913, § 3932, which provides that “every right to register and vote at such elections person who, under color of any statute, ordi- to negro citizens, contrary to U. S. Const., nance, regulation, custom, or usage, of any 15th Amend., on account of race, color, or state or territory, subjects or causes to be previous condition of servitude, since the subjected, any citizen of the United States right of every male citizen to vote unor other person within the jurisdiction der the Maryland Constitution, as changed thereof, to the deprivation of any rights, by the 15th Amendment, still existed, notprivileges, or immunities secured by the withstanding the invalidity of such qualifiConstitution and laws, shall be liable to the cations, and a prior state statute which party injured in an action at law, suit in provided for registration and elections in equity, or other proper proceeding for re- | Annapolis was unaffected by such invalidity. dress.”

[Ed. Note.-For other

see Elections, [Ed. Note.-For_other cases, see Elections, Cent. Dig. § 102; Dec. Dig. § 104.*] Cent. Dig. $ 102; Dec. Dig. $ 101.*] ELECTIONS (8 11*)-CIVIL RIGHTS-NEGRO SUFFRAGE-MUNICIPAL ELECTIONS,

[Nos. 8, 9, and 10.) 2. The right to vote, secured by U. S. Const., 15th Amend., against denial on account of race, color, or previous condition of Argued November 11 and 12, 1913. Decided

June 21, 1915. servitude, extends to municipal elections.

(Ed. Note.--For other cases, see Elections, Cent. Dig. $ 8; Dec. Dig. § 11.*]

HREE WRITS of Error to the Circuit ELECTIONS ($ 12*) NEGRO SUFFRAGE

Court of the United States for the Dis. GRANDFATHER CLAUSE.

trict of Maryland to review judgments 3. Conferring the right to register and awarding damages against state election vote at municipal elections in Annapolis, officials for denying the right of suffrage to as is done by Md. Laws 1908, chap. 525, upon all citizens who, despite their lack of negro citizens. Affirmed.

See same case below on demurrer, 182 the qualifications otherwise prescribed by

Fed. 223. that statute, were, prior to January 1, 1868, entitled to vote in the state of Maryland

The facts are stated in the opinion. or any other state of the United States at Messrs. William L. Marbury, Ridgley e state election, and upon the lawful male P. Melvin, and William L. Rawls for descendants of any person who, prior to that plaintiffs in error. date, was so entitled to vote, denies and

Messrs. Edgar H. Gans, Morris A. Soper, abridges the right to vote on account of race, color, or previous condition of servi- and Daniel R. Randall for defendants in ertude, contrary to U. S. Const., 15th Amend.,

á standard is thus created which, by Mr. Chief Justice Whito delivered the * necessary result, re-creates and perpetuates

opinion of the court: the very condition which the 15th Amendment was intended to destroy.

These cases involve some questions which [Ed. Note.-For other cases, see Elections, were not in the Guinn Case, No. 96, just Cent. Dig. & 8; Dec. Dig. $12.*]

decided [238 U. S. 347, 59 L. ed. 35 STATUTES (8 64*)-INVALID IN PART.

Sup. Ct. Rep. 926). The foundation ques4. The invalidity under U. S. Const., tion, however, is the same; that is, the opera15th Amend., of the provision of Md. Laws tion and effect of the 15th Amendment. 1908, chap. 525, which confers the right to vote at municipal elections in Annapolis ment the privilege of suffrage was conferred

Prior to the adoption of the 15th Amend. upon all citizens who, prior to January 1, 1868, were entitled to vote in the state of by the Constitution of Maryland of 1867 Maryland or any other state of the United upon “every white male citizen," but the States at a state election, and their lawful 15th Amendment by its self-operative force male descendants, despite their lack of the obliterated the word "white," and caused qualifications otherwise prescribed by that the qualification therefore to be “every male statute, renders invalid also such other citizen,” and this came to be recognized by qualifications, viz.,, that the prospective the court of appeals of the state of Maryvoter must either be a taxpayer assessed

land. Without recurring to the establishon the city books for at least $500, or a duly naturalized citizen, or a male child of ment of the city of Annapolis as a municinaturalized citizens who has reached the pality in earlier days, or following the age of twenty-one years.

development of its government, it suffices [Ed. Note.-For

Statutes, to say that before 1877 the right to vote Cent. Dig. $8 58-66, 195; Dec. Dig. $ 64.*]

for the governing municipal body was vested ELECTIONS ($ 101*)-OFFICERS-LIABILITY in persons entitled to vote for members of DENYING SUFFRAGE TO NEGRO CITI

ror.

*375

as

other

cases,

see

the general assembly of Maryland, which 5. The invalidity of the provisions of standard, by the elimination of the word Md. Laws 1908, chap. 525, prescribing quali. I "white" from the Constitution by the 15th

ZENS.

*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

•377

Amendment embraced "every male citizen." | of the board. They consequently were mIn 1896 a general election law comprising able to vote. Anderson, the defendant in many sections was enacted in Maryland. error in No. 8, was a negro citizen who posLaws of 1896, chap. 202, p. 327. It is suffi- sessed all the qualifications required to vote cient to say that it provided for a board exacted by the law in existence prior to of supervisors of elections in each county the one we have just quoted, and who on to be appointed by the governor, and that January 1, 1868, the date fixed in the third this board was given the power to appoint class in the act in question, would have two persons as registering officers and two been entitled to vote in Maryland but for, as judges of election for each election pre- the fact that he was a negro, albeit he poscinct or ward in the county. Under this sessed none of the particular qualifications: law each ward or voting precinct in Annap- enumerated by the statute in question. olis became entitled to two registering of- Howard, the defendant in error in No. 9, ficers. While the law made these changes was a negro citizen possessing all the quali. in the election machinery it did not change fications to vote required before the passage the qualification of voters.

of the act in question, whose grandfather In 1908 an act was passed “to fix the resided in Maryland and would have been qualifications of voters at municipal elec- entitled to vote on January 1, 1868, but tions in the city of Annapolis and to pro- for the fact that he was a negro. Brown, vide for the registration of said voters.” the defendant in error in No. 10, also had Laws of 1908, chap. 525, p. 347. This law all the qualifications to vote under the law authorized the appointment of three persons previously existing, and his father was a as registers, instead of two, in each election negro residing in Maryland who would have ward or precinct in Annapolis, and pro- been able to vote on the date named but for vided for the mode in which they should the fact that he was a negro. The three perform their duties, and conferred the right parties thereupon began these separate suits of registration and consequently the* right to recover damages against the two registo vote on all male citizens above the tering officers who had refused to register age of twenty-one years who had resided one them on the ground that thereby they had year in the municipality and had not been been deprived of a right to vote secured by convicted of crime, and who came within the 15th Amendment, and that there was any one of the three following classes : liability for damages under $ 1979, Rev.

“1. All taxpayers of the city of Annap- Stat., Comp. Stat. 1913, § 3932, which is olis assessed on the city books for at least as follows: $500. 2. And duly naturalized citizens. 27. “Every person who under color of any And male children of naturalized citizens statute, ordinance, regulation, custom or who have reached the age of twenty-one usage, of any state or territory, subjects or years. 3. All citizens who prior to Jan causes to be subjected, any citizen of the uary 1, 1868, were entitled to vote in the United States or other person within the state of Maryland or any other state of jurisdiction thereof, to the deprivation of the United States at a state election, and any rights, privileges or immunities sethe lawful male descendants of any person cured by the Constitution and Laws, shall who prior to January 1, 1868, was entitled be liable to the party injured in an action to vote in this state or in any other state at law, suit in equity, or other proper proof the United States at a state election, ceeding for redress.” and no person not coming within one of the The complaints were demurred to and it three enumerated classes shall be registered would seem that every conceivable quesas a legal voter of the city of Annapolis ortion of law susceptible of being raised was qualified to vote at the municipal elections presented and considered, and the demur. held therein, and any person so duly regis- rers were overruled, the grounds for BO tered shall, while so registered, be qualified doing being stated in one opinion common to vote at any municipal election held in to the three cases (182 Fed. 223). The cases said city; said registration shall in all were then tried to the court without a jury, other respects conform to the laws of the and to the judgments in favor of the plainstate of Maryland relating to and provid- tiffs which resulted these three separate ing for registration in the state of Mary, writs of error were prosecuted. land."

The nonliability in any event of the elec The three persons who are defendants in tion officers for their official conduct is error in these cases applied in Annapolis seriously pressed in argument, and it is also to the board of registration to be registered urged that in any event there could not be As a prerequisite to the enjoyment of their liability under the 15th Amendment for havright to vote at an election to be held in ing deprived of the right to vote at a muJuly, 1909, and they were denied the right nicipal election. But we do not undertake by a vote of two out of the three members to review the considerations pressed on

+381

these rubjects because we think they are situation would establish that the request fully disposed of by the ruling this day made by all the plaintiffs for registration made in the Guinn Case and by the very was rightfully refused since, even if the terms of $ 2004, Rev. Stat., Comp. Stat. void standard be put wholly out of view, 1913, § 3966, when considered in the light none of the parties had the qualifications of the inherently operative force of the 15th necessary to entitle them to register and Amendment as stated in the case referred to vote under any of the others. This requires

This brings us to consider the statute in us therefore to determine whether the two order to determine whether its standards first standards which we have held were for registering and voting are repugnant to valid or have assumed to be so must neverthe 15th Amendment. There are three gen. theless be treated as nonexisting as the nec eral criteria. We test them by beginning essary result of the elimination of the at the third, as it is obviously the most third standard because of its repugnancy comprehensive, and, as we shall ultimately to the prohibition of the 15th Amendment. see, the keystone of the arch upon which all And by this we are brought therefore to the others rest. In coming to do so it is determine the interrelation of the provisions at once manifest that, barring some negli and the dependency of the two first, includ. gible changes in phraseology, that standarding the substandard under the second, upon is in all respects identical with the one the third; in other words, to decide whether just decided in the Guinn Case to be repug- or not such a unity existed between the nant to the 15th Amendment, and we pass standards that the destruction of one necesfrom its consideration and approach the sarily leaves no possible reason for recoge first and a subdivision numbered 2. The nizing the continued existence and operative first confers the right to register and vote force of the others. free from any distinction on account of race In the Guinn Case this subject was also or color upon all taxpayers assessed for at passed upon and it was held that albeit the least $500. We put all question of the con decision of the question was, in the very stitutionality of this standard out of view nature of things, a state one, nevertheless, as it contains no express discrimination re- in the absence of controlling state rulings, pugnant to the 15th Amendment, and it is it was our duty to pass upon the subject, not susceptible of being assailed on account and that in doing so the overthrow of an of an alleged wrongful motive on the part illegal standard would not give rise to the of the lawmaker or the mere possibilities destruction of a legal one unless such roof its future operation in practice, and be sult was compelled by one or both of the cause, as there is a reason other than dis- following conditions: (a) Where the provicrimination on account of race or color dis- sion as a whole plainly and expressly estabcernible upon which the standard may rest, lished the dependency of the one standard there is no room for the conclusion that it upon the other, and therefore rendered it must be assumed, because of the impossi- necessary to conclude that both must disbility of finding any other reason for its appear as the result of the destruction of enactment, to rest alone upon a purpose to either; and (b) where, even although there violate the 15th Amendment. And as, in was no express ground for reaching the conorder to dispose of the case, au we shall see, clusion just stated, nevertheless that view it is not necessary to examine the constitu- might result 'from an overwhelming implicationality of the other standards, that is, tion consequent upon the condition which numbers 2 and 2} relating to naturalized would be created by holding that the discitizens and their descendants, merely for appearance of the one did not prevent the the sake of argument we assume those two survival of the other; that is, a condition standards, without so deciding, to be also which would be so unusual, so extreme, so free from constitutional objection, and come incongruous as to leave no possible ground to consider the case under that hypothesis. for the conclusion that the death of the one

The result, then, is this: that the third had not also carried with it the cessation standard is void because it amounts to a of the life of the other. mere denial of the operative effect of the 15th That both of these exceptions here obtain Amendment, and, based upon that concep- we think is clear: First, because, looking tion, proceeds to re-create and re-establish at the context of the provision, we think a condition which the Amendment prohibits that the obvious purpose was not to subject and the existence of which had been previ- to the exactions of the first standard (tho ously stricken down in consequence of the property qualification) any person who was Belf-operative force of its prohibitions; and included in the other standards; and second, the other standards separately considered | because the result of holding that the other are valid or are assumed to be such and standards survived the striking down of therefore are not violative of the 15th the third would be to bring about such an

í Amendment. On its face, therefore, this ' abnormal result as would bring the case

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