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 were registered without any proof except the oath of the applicant. It is alleged that §§ 180, 181, 183, 184, 185, 186, 187, and 188 of article 8 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 14th and 15th Amendments to the Constitution of the United States because subdivisions 1 and 2 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 3 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 § 181 of article 8 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 § 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 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 wilfully 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 1st section of the 15th 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 14th and 15th 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 §§ 180, 181, 183, 184, 185, 186, 187, and 188 of article 8 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 § 180 of article 8 is obnoxious and repugnant to the 14th and 15th 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 § 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 § 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 § 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 14th and 15th 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 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 14th and 15th 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 §§ 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.
Mr. Wilford H. Smith for plaintiff in error.
[Argument of Counsel from pages 151-154 intentionally omitted]
Mr. W. A. Gunter for defendant in error.
[Argument of Counsel from Pages 154-160 intentionally omitted]
Mr. Justice Day, after making the foregoing statement, delivered the opinion of the court: