The provisions in section 241 of the Constitution of Mississippi
prescribing the qualifications for electors, in section 242,
conferring upon the legislature power to enact laws to carry those
provisions into effect, in section 244, making ability to read any
section of the Constitution or to understand it when read, a
necessary qualification to a legal voter, and of section 264,
making it a necessary qualification for a grand or petit juror that
he shall be able to read and write, and sections 2358, 3643 and
3644 of the Mississippi Code of 1892, with regard to elections, do
not, on their face, discriminate between the white and negro races,
and do not amount to a denial of the equal protection of the law,
secured by the Fourteenth Amendment to the Constitution, and it has
not been shown that their actual administration was evil, but only
that evil was possible under them.
At June term, 1896, of the Circuit Court of Washington County,
Mississippi, the plaintiff in error was indicted by a grand jury
composed entirely of white men for the crime of murder. On the 15th
day of June, he made a motion to quash the indictment which was in
substance as follows, omitting repetitions and retaining the
language of the motion as nearly as possible:
"Now comes the defendant in this cause, Henry Williams by name,
and moves the Circuit Court of Washington County, Mississippi, to
quash the indictment herein filed, and upon
Page 170 U. S. 214
which it is proposed to try him for the alleged offense of
murder: (1) because the laws by which the grand jury was selected,
organized, summoned, and charged, which presented the said
indictment, are unconstitutional and repugnant to the spirit and
letter of the Constitution of the United States of America,
Fourteenth Amendment thereof, in this, that the Constitution
prescribes the qualifications of electors, and that, to be a juror,
one must be an elector; that the Constitution also requires that
those offering to vote shall produce to the election officers
satisfactory evidence that they have paid their taxes; that the
legislature is to provide means for enforcing the Constitution,
and, in the exercise of this authority, enacted section 3643, also
section 3644 of 1892, which respectively provide that the election
commissioners shall appoint three election managers, and that the
latter shall be judges of the qualifications of electors, and are
required 'to examine on oath any person duly registered and
offering to vote touching his qualifications as an elector.'"
And then the motion states that
"the registration roll is not
prima facie evidence of
an elector's right to vote, but the list of those persons having
been passed upon by the various district election managers of the
county to compose the registration book of voters as named in
section 2358 of said Code of 1892, and that there was no
registration books of voters prepared for the guidance of said
officers of said county at the time said grand jury was drawn."
It is further alleged that there is no statute of the state
providing for the procurement of any registration books of voters
of said county, and (it is alleged in detail) the terms of the
Constitution and the section of the Code mentioned, and the
discretion given to the officers,
"is but a scheme on the part of the framers of that Constitution
to abridge the suffrage of the colored electors in the State of
Mississippi on account of the previous condition of servitude by
granting a discretion to the said officers as mentioned in the
several sections of the constitution of the state and the statute
of the state adopted under the said constitution. The use of said
discretion can be and has been used in the said Washington County
to the end complained of."
After some detail to the
Page 170 U. S. 215
same effect, it is further alleged that the constitutional
convention was composed of 134 members, only one of whom was a
negro. That under prior laws, there were 190,000 colored voters and
69,000 white voters. The makers of the new constitution arbitrarily
refused to submit it to the voters of the state for approval, but
ordered it adopted, and an election to be held immediately under
it, which election was held under the election ordinances of the
said constitution in November, 1891, and the legislature assembled
in 1892, and enacted the statutes complained of for the purpose to
discriminate aforesaid, and but for that the "defendant's race
would have been represented impartially on the grand jury which
presented this indictment," and hence he is deprived of the equal
protection of the laws of the state. It is further alleged that the
state has not reduced its representation in Congress, and generally
for the reasons aforesaid, and because the indictment should have
been returned under the constitution of 1869 and statute of 1889,
it is null and void. The motion concludes as follows:
"Further, the defendant is a citizen of the United States, and,
for the many reasons herein named, asks that the indictment be
quashed, and he be recognized to appear at the next term of the
court."
This motion was accompanied by four affidavits, subscribed and
sworn to before the clerk of the court on June 15, 1896,
to-wit:
1st. An affidavit of the defendant,
"who, being duly sworn, deposes and says that the facts set
forth in the foregoing motion are true to the best of his
knowledge, of the language of the constitution and the statute of
the state mentioned in said motion, and upon information and belief
as to the other facts, and that the affiant verily believes the
information to be reliable and true."
2d. Another affidavit of the defendant,
"who, being first duly sworn, deposes and says that he has heard
the motion to quash the indictment herein read, and that he
thoroughly understands the same, and that the facts therein stated
are true, to the best of his knowledge and belief. As to the
existence of the several sections of the state constitution and
the
Page 170 U. S. 216
several sections of the state statute mentioned in said motion
to quash, further affiant states that the facts stated in said
motion, touching the manner and method peculiar of the said
election, by which the delegates to said constitutional convention
were elected, and the purpose for which said objectionable
provisions were enacted, and the fact that the said discretion
complained of as aforesaid has abridged the suffrage of the number
mentioned therein, for the purpose named therein -- all such
material allegations are true, to the best of affiant's knowledge
and belief, and the fact of the race and color of the prisoner in
this cause, and that race and color of the voters of the state
whose elective franchise is abridged as alleged therein, and the
fact that they who are discriminated against, as aforesaid, are
citizens of the United States, and that, prior to the adoption of
the said constitution and said statute the said state was
represented in Congress by seven representatives in the lower house
and two senators, and that since the adoption of the said
objectionable laws, there has been no reduction of said
representation in Congress. All allegations herein, as stated in
said motion aforesaid, are true to the best of affiant's knowledge
and belief."
3d. An affidavit of John H. Dixon,
"who, being duly sworn, deposes and says that he had heard the
motion to quash the indictment filed in the
Henry Williams
case, and thoroughly understands the same, and that he has also
heard the affidavit sworn to by said Henry Williams carefully read
to him, and thoroughly understands the same. And in the same manner
the facts are sworn to in the said affidavit, and the same facts
alleged therein upon information and belief are hereby adopted as
in all things the sworn allegations of affiant, and the facts
alleged therein, as upon knowledge and belief, are made hereby the
allegations of affiant upon his knowledge and belief."
4th. An affidavit of C. J. Jones,
"who, being duly sworn, deposes and says that he has read
carefully the affidavit filed in the
John Dixon case sworn
to by him (said C. J. Jones), and that he, said affiant, thoroughly
understands the same, and adopts the said allegations therein as
his deposition in
Page 170 U. S. 217
this case upon hearing this motion to quash the indictment
herein, and that said allegations are in all things correct and
true as therein alleged."
The motion was denied, and the defendant excepted. A motion was
then made to remove the cause to the United States circuit court,
based substantially on the same grounds as the motion to quash the
indictment. This was also denied, and an exception reserved.
The accused was tried by a jury composed entirely of white men,
and convicted. A motion for a new trial was denied, and the accused
sentenced to be hanged. An appeal to the supreme court was taken,
and the judgment of the court below was affirmed.
The following are the assignments of error:
1. The trial court erred in denying motion to quash the
indictment, and petitioned for removal.
2. The trial court erred in denying motion for new trial, and
pronouncing death penalty under the verdict.
3. The supreme court erred in affirming the judgment of the
trial court.
The sections of the Constitution of Mississippi and the laws
referred to in the motion of the plaintiff in error are printed in
the margin.
*
Page 170 U. S. 219
MR. JUSTICE McKENNA, after stating the case, delivered the
opinion of the Court.
The question presented is are the provisions of the Constitution
of the State of Mississippi and the laws enacted to enforce the
same repugnant to the Fourteenth Amendment of the Constitution of
the United States? That amendment and its effect upon the rights of
the colored race have been considered by this Court in a number of
cases, and it has been uniformly held that the Constitution of the
United States, as amended, forbids, so far as civil and political
rights are concerned, discriminations by the general government or
by the states against any citizen because of his race; but it has
also been held in a very recent case to justify a removal from a
state court to a federal court of a cause in which such rights are
alleged to be denied, that such denial must be the result of the
constitution or laws of the state, not of the administration of
them. Nor can the conduct of a criminal trial in a state court be
reviewed by this Court unless the trial is had under some statute
repugnant to the Constitution of the United
Page 170 U. S. 220
States, or was so conducted as to deprive the accused of some
right or immunity secured to him by that instrument. Upon this
general subject, this Court, in
Gibson v. Mississippi,
162 U. S. 566,
162 U. S. 581,
after referring to previous cases, said:
"But those cases were held to have also decided that the
Fourteenth Amendment was broader than the provisions of section 641
of the Revised Statutes; that, since that section authorized the
removal of a criminal prosecution before trial, it did not embrace
a case in which a right is denied by judicial action during a
trial, or in the sentence, or in the mode of executing the
sentence; that for such denials arising from judicial action after
a trial commenced, the remedy lay in the revisory power of the
higher courts of the state, and ultimately in the power of review
which this Court may exercise over their judgments whenever rights,
privileges, or immunities claimed under the Constitution or laws of
the United States are withheld or violated, and that the denial or
inability to enforce in the judicial tribunals of the states rights
secured by any law providing for the equal civil rights of citizens
of the United States to which section 641 refers, and on account of
which a criminal prosecution may be removed from a state court, is
primarily, if not exclusively, a denial of such rights, or an
inability to enforce them resulting from the constitution or laws
of the state, rather than a denial first made manifest at or during
the trial of the case."
It is not asserted by plaintiff in error that either the
constitution of the state or its laws discriminate in terms against
the negro race, either as to the elective franchise or the
privilege or duty of sitting on juries. These results, if we
understand plaintiff in error, are alleged to be effected by the
powers vested in certain administrative officers.
Plaintiff in error says:
"Section 241 of the Constitution of 1890 prescribes the
qualifications for electors; that residence in the state for two
years, one year in the precinct of the applicant, must be effected;
that he is twenty-one years or over of age, having paid all taxes
legally due of him for two years prior to 1st day of February of
the year he offers to vote, not having
Page 170 U. S. 221
been convicted of theft, arson, rape, receiving money or goods
under false pretenses, bigamy, embezzlement."
"Section 242 of the constitution provides the mode of
registration; that the legislature shall provide by law for
registration of all persons entitled to vote at any election, and
that all persons offering to register shall take the oath; that
they are not disqualified for voting by reason of any of the crimes
named in the constitution of this state; that they will truly
answer all questions propounded to them concerning their
antecedents so far as they relate to the applicant's right to vote,
and also as to their residence before their citizenship in the
district in which such application for registration is made. The
court readily sees the scheme. If the applicant swears, as he must
do, that he is not disqualified by reason of the crimes specified,
and that he has effected the required residence, what right has he
to answer all questions as to his former residence? Section 244 of
the constitution requires that the applicant for registration,
after January, 1892, shall be able to read any section of the
constitution, or he shall be able to understand the same (being any
section of the organic law), or give a reasonable interpretation
thereof. Now we submit that these provisions vest in the
administrative officers the full power, under section 242, to ask
all sorts of vain, impertinent questions, and it is with that
officer to say whether the questions relate to the applicant's
right to vote. This officer can reject whomsoever he chooses and
register whomsoever he chooses, for he is vested by the
constitution with that power. Under section 244, it is left with
the administrative officer to determine whether the applicant
reads, understands, or interprets the section of the constitution
designated. The officer is the sole judge of the examination of the
applicant, and, even though the applicant be qualified, it is left
with the officer to so determine, and the said officer can refuse
him registration."
To make the possible dereliction of the officers the dereliction
of the constitution and laws, the remarks of the supreme court of
the state are quoted by plaintiff in error as to their intent. The
constitution provides for the payment of a poll
Page 170 U. S. 222
tax, and by a section of the Code, its payment can to be
compelled by a seizure and sale of property. We gather from the
brief of counsel that its payment is a condition of the right to
vote, and, in a case to test whether its payment was or was not
optional,
Ratcliff v. Beal, 20 So. 865, the supreme court
of the state said:
"Within the field of permissible action under the limitations
imposed by the federal constitution, the convention swept the field
of expedients, to obstruct the exercise of suffrage by the negro
race."
And further, the court said, speaking of the negro race:
"By reason of its previous condition of servitude and
dependencies, this race had acquired or accentuated certain
peculiarities of habit, of temperament, and of character which
clearly distinguished it as a race from the whites; a patient,
docile people, but careless, landless, migratory within narrow
limits, without forethought, and its criminal members given to
furtive offenses, rather than the robust crimes of the whites.
Restrained by the federal Constitution from discriminating against
the negro race, the convention discriminates against its
characteristics, and the offenses to which its criminal members are
prone."
But nothing tangible can be deduced from this. If weakness were
to be taken advantage of, it was to be done "within the field of
permissible action under the limitations imposed by the federal
Constitution," and the means of it were the alleged characteristics
of the negro race, not the administration of the law by officers of
the state. Besides, the operation of the Constitution and laws is
not limited by their language or effects to one race. They reach
weak and vicious white men as well as weak and vicious black men,
and whatever is sinister in their intention, if anything, can be
prevented by both races by the exertion of that duty which
voluntarily pays taxes and refrains from crime.
It cannot be said, therefore, that the denial of the equal
protection of the laws arises primarily from the constitution and
laws of Mississippi; nor is there any sufficient allegation of an
evil and discriminating administration of them. The only allegation
is
". . . by granting a discretion to the said officers, as
mentioned in the several sections of the constitution
Page 170 U. S. 223
of the state, and the statute of the state adopted under the
said constitution, the use of which discretion can be and has been
used by said officers in the said Washington County to the end here
complained of, to-wit, the abridgment of the elective franchise of
the colored voters of Washington County; that such citizens are
denied the right to be selected as jurors to serve in the circuit
court of the county, and that this denial to them of the right to
equal protection and benefits of the laws of the State of
Mississippi on account of their color and race, resulting from the
exercise of the discretion partial to the white citizens, is in
accordance with the purpose and intent of the framers of the
present constitution of said state. . . ."
It will be observed that there is nothing direct and definite in
this allegation either as to means or time as affecting the
proceedings against the accused. There is no charge against the
officers to whom is submitted the selection of grand or petit
jurors, or those who procure the lists of the jurors. There is an
allegation of the purpose of the convention to disfranchise
citizens of the colored race; but with this we have no concern
unless the purpose is executed by the constitution or laws or by
those who administer them. If it is done in the latter way, how or
by what means should be shown. We gather from the statements of the
motion that certain officers are invested with discretion in making
up lists of electors, and that this discretion can be and has been
exercised against the colored race, and from these lists jurors are
selected. The Supreme Court of Mississippi, however, decided, in a
case presenting the same questions as the one at bar, "that jurors
are not selected from or with reference to any lists furnished by
such election officers."
Dixon v. State, Nov. 9, 1896, 20
So. 839.
We do not think that this case is brought within the ruling in
Yick Wo v. Hopkins, 118 U. S. 356. In
that case, the ordinances passed on discriminated against laundries
conducted in wooden buildings. For the conduct of these, the
consent of the board of supervisors was required, and not for the
conduct of laundries in brick or stone buildings. It was
Page 170 U. S. 224
admitted that there were about 320 laundries in the City and
County of San Francisco, of which 240 were owned and conducted by
subjects of China, and, of the whole number, 310 were constructed
of wood, the same material that constitutes nine-tenths of the
houses of the city, and that the capital invested was not less than
$200,000.
It was alleged that 150 Chinamen were arrested, and not one of
the persons who were conducting the other eighty laundries, and who
were not Chinamen. It was also admitted
"that petitioner and 200 of his countrymen similarly situated
petitioned the board of supervisors for permission to continue
their business in the various houses which they had been occupying
and using for laundries for more than twenty years, and such
petitions were denied, and all the petitions of those who were not
Chinese, with one exception of Mrs. Mary Meagles, were
granted."
The ordinances were attacked as being void on their face, and as
being within the prohibition of the Fourteenth Amendment, but even
if not so, that they were void by reason of their administration.
Both contentions were sustained.
Mr. Justice Matthews said that the ordinance drawn in
question
"does not describe a rule and conditions for the regulation of
the use of property for laundry purposes, to which all similarly
situated may conform. It allows without restriction the use for
such purposes of buildings of brick or stone, but as to wooden
buildings, constituting all those in previous use, divides the
owners or occupiers into two classes, not having respect to their
personal character and qualifications for the business, nor the
situation and nature and adaptation of the buildings themselves,
but merely by an arbitrary line, on one side of which are those who
are permitted to pursue their industry by the mere will and consent
of the supervisors, and on the other those from whom that consent
is withheld at their mere will and pleasure."
The ordinances therefore were on their face repugnant to the
Fourteenth Amendment. The Court, however, went further, and
said:
"This conclusion and the reasoning on which it is based are
deductions from the face of the ordinance, as to its
Page 170 U. S. 225
necessary tendency and ultimate actual operation. In the present
cases, we are not obliged to reason from the probable to the
actual, and pass upon the validity of the ordinances complained of
as tried merely by the opportunities which their terms afford of
unequal and unjust discrimination in their administration. For the
cases present, the ordinances in actual operation, and the facts
shown, establish an an administration directed so exclusively
against a particular class of persons as to warrant and require the
conclusion that, whatever may have been the intent of the
ordinances as adopted, they are applied by the public authorities
charged with their administration, and thus representing the state
itself, with a mind so unequal and oppressive as to amount to a
practical denial by the state of that equal protection of the laws
which is secured to the petitioners, as to all other persons, by
the broad and benign provisions of the Fourteenth Amendment to the
constitution of the United States. Though the law itself be fair on
its face and impartial in appearance, yet if it is applied and
administered by public authority with an evil eye and an unequal
hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights,
the denial of equal justice is still within the prohibition of the
constitution. This principle of interpretation has been sanctioned
in
Henderson v. Mayor of New York, 92 U. S.
259;
Chy Lung v. Freeman, 92 U. S.
275;
Ex Parte Virginia, 100 U. S.
339;
Neal v. Delaware, 103 U. S.
370, and
Soon Hing v. Crowley, 113 U. S.
703."
This comment is not applicable to the Constitution of
Mississippi and its statutes. They do not on their face
discriminate between the races, and it has not been shown that
their actual administration was evil; only that evil was possible
under them.
If follows therefore that the judgment must be
Affirmed.
* The three sections of article 12 of the constitution of the
State of Mississippi above referred to read as follows:
"SEC. 241. Every male inhabitant of this state except idiots,
insane persons and Indians not taxed, who is a citizen of the
United States twenty-one years old and upwards, who has resided in
this state two years, and one year in the election district, or in
the incorporated city or town in which he offers to vote, and who
is duly registered as provided in this article, and who has never
been convicted of bribery, burglary, theft, arson, obtaining money
or goods under false pretenses, perjury, forgery, embezzlement or
bigamy, and who has paid, on or before the 1st day of February of
the year in which he shall offer to vote all taxes which may have
been legally required of him and which he has had an opportunity of
paying according to law for the two preceding years, and who shall
produce to the officer holding the election satisfactory evidence
that he has paid said taxes, is declared to be a qualified elector;
but any minister of the gospel in charge of an organized church
shall be entitled to vote after six months' residence in the
election district, if otherwise qualified."
"SEC. 242. The legislature shall provide by law for the
registration of all persons entitled to vote at any election, and
all persons offering to register shall take the following oath or
affirmation:"
"I, _____, do solemnly swear (or affirm) that I am twenty-one
years old (or I will be before the next election in this county)
and that I will have resided in this state two years and _____
election district of _____ county one year next preceding the
ensuing election (or if it be stated in the oath that the person
proposing to register is a minister of the gospel in charge of an
organized church, then it will be sufficient to aver therein two
years' residence in the state and six months in said election
district) and am now in good faith a resident of the same, and that
I am not disqualified from voting by reason of having been
convicted of any crime named in the constitution of this state as a
disqualification to be an elector; that I will truly answer all
questions propounded to me concerning my antecedents so far as they
relate to my right to vote, and also as to my residence before my
citizenship in this district; that I will faithfully support the
constitution of the United States and of the State of Mississippi,
and will bear true faith and allegiance to the same. So held me
God."
"In registering voters in cities and towns not wholly in one
election district, the name of such city or town may be substituted
in the oath for the election district. Any willful and corrupt
false statement in said affidavit, or in answer to any material
question propounded as herein authorized shall be perjury."
"SEC. 244. On and after the first day of January, A.D. 1892,
every elector shall, in addition to the foregoing qualifications,
be able to read any section of the constitution of this state or he
shall be able to understand the same when read to him or give a
reasonable interpretation thereof. A new registration shall be made
before the next ensuing election after January the first, A.D.
1892."
Section 264 of article 14 of the constitution of the State of
Mississippi, above referred to, reads as follows:
"SEC. 264. No person shall be a grand or petit juror unless a
qualified elector and able to read and write; but the want of any
such qualification in any juror shall not vitiate any indictment or
verdict. The legislature shall provide by law for procuring a list
of persons so qualified, and the drawing therefrom of grand and
petit jurors for each term of the circuit court."
The three sections of the Code of 1892 of the Mississippi above
referred to read as follows:
"SEC. 2358. How List of Jurors Procured -- The board of
supervisors, at the first meeting in each year or a subsequent
meeting if not done at the first, shall select and make a list of
persons to serve as jurors in the circuit court for the next two
terms to be held more than thirty days afterwards, and as a guide
in making the list, they shall use the registration books of
voters, and it shall select and list the names of qualified persons
of good intelligence, sound judgment, and fair character, and shall
take them as nearly as it conveniently can from the several
election districts in proportion to the number of the qualified
persons in each, excluding all who have served on the regular panel
within two years, if there be not a deficiency of jurors."
". 3643. Managers of Election Appointed -- Prior to every
election, the commissioners of election shall appoint three persons
for each election district to be managers of the election, who
shall not all be of the same political party, if suitable persons
of different political parties can be had in the district, and if
any person appointed shall fail to attend and serve, the managers
present, if any, may designate one to fill his place, and if the
commissioners of election fail to make the appointments, or in case
of the failure of all those appointed to attend and serve, any
three qualified electors present when the polls should be opened
may act as managers."
"SEC. 3644. Duties and Powers of Managers -- The managers shall
take care that the election is conducted fairly and agreeably to
law, and they shall be judges of the qualifications of electors.
and may examine on oath any person duly registered and offering to
vote touching his qualifications as an elector, which oath any of
the managers may administer."
