The right of this Court to review the decisions of the highest
court of a state is, even in cases involving the gravity of
statements charging violations by the provisions of a state
constitution of the Fifteenth Amendment, circumscribed by the rules
established by law, and in every case coming to the court on writ
of error or appeal the question of jurisdiction must be answered,
whether propounded by counsel or not.
Where the state court decides the case for reasons independent
of the federal right claimed its action is not reviewable on writ
of error by this Court.
A negro citizen of Alabama and who had previously enjoyed the
right to vote, and who had complied with all reasonable
requirements of the
Page 193 U. S. 147
board of registrars, was refused the right to vote for, as he
alleged, no reason other than his race and color, the members of
the board having been appointed and having acted under the
provisions of the state constitution of 1901. He sued the members
of the board for damages for such refusal in an action, and applied
for a writ of mandamus to compel them to register him, alleging in
both proceedings the denial of his rights under the federal
Constitution, and that the provisions of the state constitution
were repugnant to the Fifteenth Amendment. The complaint was
dismissed on demurrer and the writ refused, the highest court of
the state holding that, if the provisions of the state constitution
were repugnant to the Fifteenth Amendment, they were void, and that
the board of registrars appointed thereunder had no existence and
no power to act and would not be liable for a refusal to register
him, and could not be compelled by writ of mandamus to do so; that,
if the provisions were constitutional, the registrars had acted
properly thereunder, and their action was not reviewable by the
courts.
Held that the writs of error to this Court should be
dismissed, as such decisions do not involve the adjudication
against the plaintiff in error of a right claimed under the federal
Constitution, but deny the relief demanded on grounds wholly
independent thereof.
These cases are writs of error to the Supreme Court of the State
of Alabama.
In No. 337, the action was brought to recover damages in the sum
of $5,000 against the Board of Registrars of Montgomery County,
Alabama, for refusing to register the plaintiff as a qualified
elector of the state. The substance of the complaint is: the
plaintiff is a native of the State of Alabama, a resident of
Montgomery County for thirty years, and of the voting precinct for
more than two years. He applied for registration, having
theretofore enjoyed the right of voting in the state; the
application was made to the board to registrars on March 13, 1902;
the plaintiff complied with all reasonable requirements of the
board, but was arbitrarily refused the right of registration for no
other reason than his race and color. At the same time, a large
number of negroes similarly situated were likewise refused, while
all the white men were registered and given certificates, without
denial, nor was any question raised as to their qualifications. The
registrars required the plaintiff and all members of his race to
furnish the testimony of two white men as to their qualifications,
and refused to accept the testimony of colored persons, while all
the white men
Page 193 U. S. 148
were registered without any proof except the oath of the
applicant. It is alleged that sections 180, 181, 183, 184, 185,
186, 187, and 188 of Article VIII of the Constitution of the State
of Alabama, which went into effect November 28, 1901, under
authority of which the registrars were acting, was intended,
designed, and enacted by the constitutional convention to deny and
abridge the right of the plaintiff and others of his race in the
state to vote, solely on account of race, color, and previous
condition of servitude. The convention of the State of Alabama was
composed entirely of white men, although the population of the
state is composed of 1,001,152 white and 827,545 colored persons.
It is alleged that Article 180 of said constitution is repugnant to
the Fourteenth and Fifteenth Amendments to the Constitution of the
United States because subdivisions one and two of said section do
not contain a statement of qualifications applicable to all,
regardless of race, color, and previous condition of servitude, but
discriminate against negroes solely on account of race. Subdivision
three is unreasonable and void in not defining what character a
good citizen must have and what obligations he must understand
under a republican form of government, and gives to the registrars
a wide discretion and authority, and invests them with arbitrary
power. That section 181 of Article VIII is repugnant to the said
amendments to the Constitution of the United States in that, while
it pretends to describe the qualifications of persons who shall
apply for registration after January 1, 1903, it was in truth and
in effect enacted to apply to the plaintiff and all negroes of the
state, and not to operate against and affect any white persons in
the state, and is a part of a scheme to disfranchise the negroes of
Alabama on account of race, color, and previous condition of
servitude. By refusing to permit the negroes to register, the board
of registrars is forcing them to wait until January 1, 1903, when
section 181 comes into effect. It is charged that said board is
composed exclusively of white men, and the right of appeal given
from the action of said board to the circuit court and thence to
the supreme court of the state was given to more effectually hinder
the plaintiff and others of his race in their right to vote, and
not to accomplish
Page 193 U. S. 149
their registration. The negroes are excluded from serving on
juries in the trial courts of the state and have been for many
years, although qualified for the service, on account of race,
color, and previous condition of servitude. That, on appeal, the
plaintiff would encounter the same prejudice and obtain the same
result as before the board of registrars. The defendants, well
knowing the object of the constitutional provisions, were appointed
by the state to administer the same, and while so engaged, did
willfully and wrongfully refuse to register the plaintiff and
others of his race for no other reason than their race and color,
and thus deprived them of the right to vote as electors of the
state, contrary to the provisions of the first section of the
Fifteenth Amendment to the Constitution of the United States.
In No. 338, the petition for mandamus contains like allegations
as to the right of the petitioner to be registered as a voter in
the State of Alabama, and avers that he is a person of good
character and understands the duties of citizenship under a
republican form of government. The petitioner avers, as in his
petition for damages, his application to be registered March 13,
1902, which was arbitrarily refused for the reasons set forth in
the petition for damages, contrary to the right of the petitioner.
He repeats the allegations as to the registration of white persons,
and avers that the denial of registration to him and others of his
race was a denial by the State of Alabama of the equal protection
of the laws, and the denial of his right to vote solely on account
of his race, color, and previous condition of servitude, and was in
violation of the Fourteenth and Fifteenth Amendments to the
Constitution of the United States. Allegations are inserted as to
the intent and purpose of the state in calling the constitutional
convention, and the adoption of the constitution September 3, 1901.
It is alleged that the sections 180, 181, 183, 184, 185, 186, 187,
and 188 of Article VIII of said new constitution were enacted with
the intent and for the purpose set forth in the petition for
damages. Allegations are set forth as to the exclusion of the
negroes from representation notwithstanding the part they compose
of the population of the state. It is claimed that
Page 193 U. S. 150
section 180 of Article VIII is obnoxious and repugnant to the
Fourteenth and Fifteenth Amendments to the Constitution of the
United States, in that it divides the inhabitants into three
classes,
viz.: 1, soldiers' class; 2, descendants of
soldiers' class; 3, a class not soldiers nor their descendants.
That the class not soldiers or their descendants are under greater
restrictions and given greater burdens than the other classes. That
section 3 is void and unreasonable, failing to define what duties
and obligations a citizen must understand under a republican form
of government, and gives too wide a discretion to the registrars,
amounting to vesting them with arbitrary power. Subdivisions 1 and
2 do not contain a statement of qualifications which are applicable
to all alike, but discriminate against the negroes of the state on
account of race, color, and previous condition of servitude. The
petition in mandamus contains substantially the allegations of the
petition for damages as to the manner in which the Constitution was
adopted, and avers that section 181, describing the qualifications
of persons who apply for registration after January 1, 1903, was
designed and intended to apply to petitioner and others of his
race, and not intended to operate against and affect white persons
in the State of Alabama. It is charged that, in the counties of
Alabama, colored persons are refused registration, while, under the
same circumstances and possessing the same qualifications, white
men are registered without objection, thereby compelling colored
men to wait until January 1, 1903, when the provisions of section
181 will be in operation, and compelling the colored men to have
greater and different qualifications than are imposed upon the
white men in the state, all of which, it is charged, was in
pursuance of a design to evade the terms of the Fourteenth and
Fifteenth Amendments to the Constitution of the United States, and
to deny to the plaintiff and others of his race the equal
protection of the laws, and to deprive them of the right to vote
solely on account of their race, color, and previous condition of
servitude. Petitioner repeats the allegations of the former
petition for damages as to the composition of the board of
registrars, and the remedy of appeal from their action to the
courts of the state, and claims
Page 193 U. S. 151
that, if such appeal was prosecuted, it could not be heard and
determined before the election, but the hearing of the cases would
take many years. There are attached to the petition as exhibits
extracts from the speeches and debates in the convention of
Alabama. The petition charges that the board of registrars refused
to register colored men, so that not less than 75,000 of such
persons were denied registration solely on account of race, color,
and previous condition of servitude, although possessing the
necessary qualifications of electors, while the white men were
permitted to register without let or hindrance. Affidavits were
filed with the petition setting forth the denial of the right of
colored persons in various counties in the State of Alabama. The
prayer of the petition is that the aforesaid sections of the state
constitution be declared absolutely null and void as repugnant to
the Fourteenth and Fifteenth Amendments to the Constitution of the
United States, and for a writ of mandamus commanding the board of
registrars to register the plaintiff as a qualified voter of the
State of Alabama, and to issue to him a certificate of the fact,
and the like to all voters of his race in the State of Alabama who
were such under the constitution of the state prior to the adoption
of sections 180, 181, 183, 184, 185, 186, 187, and 188 of the new
constitution of the state. And that said board be further commanded
not to refuse to register said petitioner or other members of his
race on account of their race or color and previous condition of
servitude.
To the petitions in both cases demurrers were filed in the court
of original jurisdiction, which were sustained, and upon appellate
proceedings in the Supreme Court of the State of Alabama, the
decisions of the lower court were affirmed. These writs of error
seek to bring this action of the state courts in review here.
Page 193 U. S. 160
MR. JUSTICE Day, after making the foregoing statement, delivered
the opinion of the Court.
The right to review in this Court the judgment of a state court
is regulated by section 709 of the Revised Statutes. The extent and
nature of the remedy therein given has been the subject of numerous
decisions. The jurisdiction in the cases now under consideration is
invoked because of alleged denial of the rights of the plaintiff in
error, secured to him by the Fourteenth and Fifteenth Amendments to
the Constitution of the United States. When the jurisdiction
depends, as in the present cases, upon a right, privilege, or
immunity under the Constitution of the United States specially set
up and denied in the state court, certain propositions, it is said
by MR. CHIEF JUSTICE FULLER, speaking for the Court in
Sayward
v. Denny, 158 U. S. 180,
158 U. S. 183,
are well settled -- among others,
"The right on which the party relies must have been called to
the attention of the court in some proper way, and the decision of
the court must have been against the right claimed.
Hoyt v.
Shelden, 1 Black 518;
Maxwell v.
Newhold, 18 How. 511,
59 U. S.
515. . . . Or, at all events, it must appear from the
record, by clear and necessary intendment, that the federal
question was directly invoked so that the state court could not
have given judgment without deciding it."
It is equally well settled that, if the decision of a state
court rests on an independent ground -- one which does not
necessarily include a determination of the federal right claimed --
or upon a ground broad enough to sustain it without deciding the
federal question raised, this Court has no jurisdiction to review
the judgment of the state court.
New Orleans v. New Orleans
Waterworks Co., 142 U. S. 79;
Eustis v. Bolles, 150 U. S. 361;
Dower v. Richards, 151 U. S. 658,
151 U. S. 666;
Wade v. Lawder, 165 U. S. 624,
165 U. S.
623.
In every case which comes to this Court on writ of error or
appeal, the question of jurisdiction must be first answered,
whether propounded by counsel or not.
Defiance
Page 193 U. S. 161
Company v. Defiance, decided at this term,
191 U.
S. 184. In No. 337, in which an action was begun against
the registrars for damages, the case was decided upon demurrer to
the declaration. The Supreme Court of Alabama placed its decision
affirming the lower court, which sustained the demurrer, upon two
grounds, as follows:
"If we accept (without deciding) as correct the insistence laid
in appellant's brief that section 186 of Article VIII of the
Constitution of 1901 is void because repugnant to the Fourteenth
and Fifteenth Amendments of the Constitution of the United States,
then the defendants were wholly without authority to register the
plaintiff as a voter, and their refusal to do so cannot be made the
predicate for a recovery of damages against them."
"On the other hand, if that section is the source of their
authority, the jurisdiction is expressly conferred by it upon the
defendants as a board of registrars to determine the qualifications
of plaintiff as an elector and of his right to be registered as a
voter. For their judicial determination that plaintiff did not
possess the requisite qualifications of an elector, and their
judicial act of refusing to register him, predicated upon that
determination, they are not liable in this action. 17 Am. &
Eng.Ency.Law (2d ed.), pp. 727, 728, and notes. Affirmed."
136 Ala. 164.
A consideration of the plaintiff's petition shows that it
attacked the provisions of the Alabama Constitution regulating the
qualifications and registration of the electors of the state as an
attempt to disregard the provisions of the Fourteenth and Fifteenth
Amendments to the Constitution of the United States, by qualifying
the whites to exercise the elective franchise and denying the same
rights to the negroes of the state. It is alleged that sections
180, 181, 182, 184, 185, 186, 187, and 188 of the Alabama
Constitution, which took effect on November 28, 1901, and under
which the defendants were appointed registrars, and were acting at
the time, were enacted by the State of Alabama, through its
delegates to the constitutional convention, to deny and abridge the
right of the plaintiff and others of his race to vote in the state
on account of their color
Page 193 U. S. 162
and previous condition of servitude, without disfranchising a
single white man in the state. These sections of the Alabama
Constitution were before this Court in the case of
Giles v.
Harris, 189 U. S. 475, and
the general plan of voting and registration was summarized by MR.
JUSTICE HOLMES, delivering the opinion of the Court, as
follows:
"By § 178 of Article VIII, to entitle a person to vote. he must
have resided in the state at least two years, in the county one
year, and in the precinct or ward three months, immediately
preceding the election, have paid his poll taxes, and have been
duly registered as an elector. By § 182, idiots, insane persons,
and those convicted of certain crimes are disqualified. Subject to
the foregoing, by § 180, before 1903 the following male citizens of
the state, who are citizens of the United States, were entitled to
register,
viz.: First. All who had served honorably in the
enumerated wars of the United States, including those on either
side in the 'war between the states.' Second. All lawful
descendants of persons who served honorably in the enumerated wars
or in the War of the Revolution. Third. 'All persons who are of
good character and who understand the duties and obligations of
citizenship under a republican form of government.' . . . By § 181,
after January 1, 1903, only the following persons are entitled to
register: First. Those who can read and write any article of the
Constitution of the United States in the English language, and who
either are physically unable to work or have been regularly engaged
in some lawful business for the greater part of the last twelve
months, and those who are unable to read and write solely because
physically disabled. Second. Owners or husbands of owners of forty
acres of land in the state, upon which they reside, and owners or
husbands of owners of real or personal estate in the state,
assessed for taxation at three hundred dollars or more, if the
taxes have been paid, unless under contest. By § 183, only persons
qualified as electors can take part in any method of party action.
By § 184, persons not registered are disqualified from voting. By §
185, an elector whose vote is challenged shall be required to swear
that the matter of the challenge is untrue before his vote shall be
received. By § 186,
Page 193 U. S. 163
the legislature is to provide for registration after January 1,
1903, the qualifications and oath of the registrars are prescribed,
the duties of registrars before that date are laid down, and an
appeal is given to the county court and supreme court if
registration is denied. There are further executive details in §
187, together with the above-mentioned continuance of the effect of
registration before January 1, 1903. By § 188, after the
last-mentioned date, applicants for registration may be examined
under oath as to where they have lived for the last five years, the
names by which they have been known, and the names of their
employers."
It is apparent that paragraph 3 of section 180, permitting the
registration of electors before 1903, of "all persons who are of
good character and who understand the duties and obligations of
citizenship under a republican form of government," opened a wide
door to the exercise of discretionary power by the registrars. It
is charged that this section, in connection with section 181,
permitting the registration of certain persons after January, 1903,
was intended to be so carried into operation and effect that the
negroes of Alabama should be excluded from the elective franchise,
and to permit the white men to register before January 1, 1903, and
thus become electors, compelling the colored men to wait until
after January 1, 1903, and then to apply under conditions which
were especially framed and would have the effect to exclude the
colored man from voting. It is charged that the registrars well
knew the scheme and purpose set forth in the complaint to work the
disfranchisement of negro voters and to qualify the white voters to
exercise the elective franchise, and it is charged that the
defendants were appointed by the state under sections of the state
constitution adopted for the purpose of denying the colored man the
right to vote and under which the defendants are undertaking to
carry out the scheme and were so acting when they denied the right
of the plaintiff to register, thus depriving him of the right
guaranteed to him by the first section of the Fifteenth Amendment
to the Constitution of the United States. A consideration of the
allegations of this complaint, to which the demurrer was
sustained,
Page 193 U. S. 164
makes apparent that the federal right for which the plaintiff
sought protection and the recovery of damages was that secured by
the amendment to the federal Constitution which prohibits a state
from denying to the citizen the right of suffrage because of race,
color, or previous condition of servitude. But, in the present
case, the state court has not sustained the right of the state to
thus abridge the constitutional rights of the plaintiff. It has
planted its decision upon a ground independent of the alleged state
action seeking to nullify the force and effect of the
constitutional amendments protecting the right of suffrage. The
first ground of sustaining the demurrer is in effect that,
conceding the allegations of the petition to be true and the
registrars to have been appointed and qualified under a
constitution which has for its purpose to prevent negroes from
voting and to exclude them from registration for that purpose, no
damage has been suffered by the plaintiff, because no refusal to
register by a board thus constituted in defiance of the federal
Constitution could have the effect to disqualify a legal voter
otherwise entitled to exercise the elective franchise. In such a
decision, no right, immunity, or privilege, the creation of federal
authority, has been set up by the plaintiff in error, and denied in
such wise as to give this Court the right to review the state court
decision. This view renders it unnecessary to consider whether,
where a proper case was made for the denial of the right of
suffrage, it would be a defense for the election officers to say
that they were acting in a judicial capacity where the denial of
the right was solely because of the race, color, or previous
condition of servitude of the plaintiff. In the ground first
stated, we are of opinion that the state court decided the case for
reasons independent of the federal right claimed, and hence its
action is not reviewable here.
In the case for a writ of mandamus, the same attack was made
upon the action of the State of Alabama in adopting and enforcing
the provisions of the state constitution which it was charged were
adopted for the purpose of disfranchising the negroes and
permitting white men only to exercise the elective
Page 193 U. S. 165
franchise. In the mandamus case, the decision of the state court
was:
"The petition in this case is for a writ of mandamus to compel
the Board of Registrars for Montgomery County to register the
petitioner as an elector. It alleges that sections 180, 181, 183,
184, 185, 186, 187, and 188 of Art. VIII of the Constitution of
1901, fixing the qualifications of electors, and prescribing the
mode of registration, are unconstitutional because violative of the
Fourteenth and Fifteenth Amendments of the Constitution of the
United States. The prayer is in substance that these sections of
the Constitution above enumerated be declared null and void, and
that an alternative writ of mandamus issue to the board of
registrars commanding them to register as a qualified elector of
the State of Alabama, upon the books provided therefor, the name of
petitioner, and to issue to him a certificate of the fact in
disregard of said sections of the Constitution, etc."
"As these sections of the Constitution assailed created the
board of registrars, fixed their tenure of office, defined and
prescribed their duties, if they are stricken down on account of
being unconstitutional, it is entirely clear that the board would
have no existence and no duties to perform. So then, taking the
case as made by the petition, without deciding the constitutional
question attempted to be raised or intimating anything as to the
correctness of the contention on that question, there would be no
board to perform the duty sought to be compelled by the writ, and
no duty imposed of which the petitioner can avail himself in this
proceeding, to say nothing of his right to be registered. --
Affirmed."
136 Ala. 228.
We do not perceive how this decision involved the adjudication
of a right claimed under the federal Constitution against the
appellant. It denies the relief by way of mandamus, admitting the
allegations of the petition as to the illegal character of the
registration authorized in pursuance of the Alabama
Constitution.
This is a ground adequate to sustain the decision and wholly
independent of the rights set up by the plaintiff as secured to him
by the constitutional amendments for his protection.
Page 193 U. S. 166
The plaintiff in error relies upon two cases adjudicated in this
Court:
Wiley v. Sinkler, 179 U. S. 58, and
Swafford v. Templeton, 185 U. S. 487. In
the former, it was held that an action may be sustained in a court
of the United States against election officers for refusing the
plaintiff's vote for member of Congress. The allegations of the
complaint are set forth in full in the statement of the case, and
it appears that the board of managers were averred to be legally
qualified to preside at the federal election, and as such
wrongfully refused the proffered vote of the plaintiff, a duly
qualified elector, willfully and without legal excuse. It was held
that the complaint was defective for not averring that the
plaintiff was a duly registered voter. It appeared that the
registration law had not been held unconstitutional, and it further
appeared that, if such was the fact. plaintiff was not in a
position to impugn its constitutionality. In
Swafford v.
Templeton, it was held that the circuit court erred in
dismissing for want of jurisdiction an action kindred to that
sustained in
Wiley v. Sinkler, wherein the plaintiff was
denied the right to vote for member of Congress, which was held to
have its foundation in the Constitution of the United States, with
consequent jurisdiction in a federal court to redress a wrongful
denial of the right. Neither of these cases is in point in
determining our right to review the action of the state court in
the case now before us. It is apparent that the thing complained
of, so far as it involves rights secured under the federal
Constitution, is the action of the State of Alabama in the adoption
and enforcing of a constitution with the purpose of excluding from
the exercise of the right of suffrage the negro voters of the
state, in violation of the Fifteenth Amendment to the Constitution
of the United States. The great difficulty of reaching the
political action of a state through remedies afforded in the
courts, state or federal, was suggested by this Court in
Giles
v. Harris, supra.
In reaching the conclusion that the present writs of error must
be dismissed, the Court is not unmindful of the gravity of the
statements of the complainant charging violation of a
constitutional amendment which is a part of the supreme law
Page 193 U. S. 167
of the land; but the right of this Court to review the decisions
of the highest court of a state has long been well settled, and is
circumscribed by the rules established by law. We are of opinion
that plaintiffs in error have not brought the cases within the
statute giving to this Court the right of review.
The writs of error in both cases will be dismissed.
MR. JUSTICE McKENNA concurs in the result.
MR. JUSTICE HARLAN dissents.
