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U BU North fourth hr*A
;OHN MITCHELL. JR.EDITOR
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_ _ i — -—l
SATURDAY.JUNE "15 1929
It costs money to publish a news
paper but some of the folks in this
country do not seem to think so.
if you are to judge by the slow
manner in which they pay. •
It would be well to remember
when you are greatly worried that
“God rules in the affairs of men
that in the lives of all of us destiny
holds sway.
I
Those colored folks hereabouts
whose “mouths have been watering
to vote for some of these liberal
minded Democrats will now have
the privilege of so doing. It is a
good thing that Judge D. Lawrence
Groner has no aspirations to run for
public office. He could be elected
by both white and colored Citizens
“with a whoop”. ••••
Judge Groner s decision in the
case of James O. West, the Negro
Democrat is “mighty interesting
reladling 'affecting jaa it doe's the
Republican Party also. The leaders
of that Party will not be able io
“slam the door’ of the Republican
Party in the faces of the Negro Re
publicans any more than leaders of
th% Democratic Party will be able to
do this same thing with tne Negro
Democrats. It is a sword that cuts
both wav^ “Glory Hallelujah!”
The elections in South Africa took
p.ace this week and the issue on
according to the natives the right
to vote was bitterly contested. The
result as far as ascertained shows
that the present government which
opposed the suffrage^t'Pr Negroes. (
has been overthrown and the polit
ical party led by General Jan Smuts
has been overwhelmingly successful.
“The mills of the gods grind slowly,
but exceeding fine”.
Thirteen Republican “kickers”
combined with the Democrats in the
(United States Senate in defeating
the farm relief legislation as pro
posed by the Republican leaders
backed bv all the influence and
power of the Hoover Administra
tion Export debentures Jhat is the
payment of a subsidy upon foreign
goods exported from this country
was the issue. President Hoover is
opposed to it|.
At the dinner given in Washing
ton Monday, June 10th in honor of
the newly named chairman of the
{Democratic Executive Committee.
Mr. Jouett Shouse Mr*. John J.
Raskob chairman of the Democratic
National Committee announced that
he would not resign this position.
The meeting was a success and em
phasized the throttle hold that Hon.
Alfred E}. Smith of New York has
upon the organization in this coun
try.
It means that the only reason that
Mr. Smith will not be the candidate
of the Party in 1932 will be because
of his positive refusal to accept the
nomination. Those people who bolt
ed the Party will be required to stay
off the reservation for a long time.
No other conclusion can be drawn
from the speeches delivered in this
meeting. A
Jud&e Groner
The opinion is as follows:
In the District Court of the united
' States for the Eastern District
of Virginia.
James 0. Westj Plaintiff,
vs.
A. C. Bliley, William Boltz, and
William Ricker, Defendants.
At Law—No. 795.
Memo Overruling the Demurrer
The declaration alleges that the
plaintiff is a citizen of the United
States and resides in the first pre
cinct of Madison Ward in the cuy
of Richmond, Virginia. That tne first
two above named defendants were
the duly appointed judges and the
last named the duly appointed clerk
at a primary election held in the cit>
of Richmond on the 3rd of April,
1928, for the purposes of nominating
candidates on the Democratic ticket
for mavor, councilman, and aider
man. that the plaintiff, who is a
Negro, was on that day a male citizen
of the United States, over twentj
one vears of age, in all respects qua.
ified to vote in the ensuing genera
election, and that he was and had
been for some time pas>. a bona tide
member of the Democratic party oi
the State of Virginia.
To Recover Damages
The action is brought to recover
damages for the refusal b> the de
fendants to permit the plaintiff to
vote in the above mentioned primarj
solelv because he was a Negro De
fendants have filed a demurrer to the
declaration. This raises the question
whether the action of the defendants
Si excluding the plaintiff from voting
wis an infringement Qt tne
guaranteed to him by the Fourteenth
and Fifteenth Amendments Of tne
Federal Constitution. The action is
brought under Section 43 of lide b
of U. S. C. A.
Virginia Constitution
Section 36 of the Constitution of
Virginia provides as follows. i
“The General Assembly shall
enact such laws as are necessary
and proper for the purpose ot
securing the regularity and pur
itv of general, local and primal }
elections, and preventing and
punishing any corrupt practices
in connection therewith; and
shall have power, in addition to
other penalties and punishments
now or hereafter prescribed by
law for such offences, to provide
that persons convicted of them
shall thereafter be disqualified
from voting or holding office. i
Pursuant to this authority the uen
eral Assembly of Virginia hm provid
ed (Code 1924. Chapter lo, Section
2211 a comprehensive plan in rela
tion to primary elections, providing
therein for participation by any po
litical party which shall at the pre
ceding presidential election have
polled at least one-fourth of the total
vote cast in such election.
Applies to All Nominations
The provisions of this chapter ap
ply to the nominations of all candi
dates for office to be nominated by a
' direct primary. The right is granted
' to the party authorities of any politi-<
cal party qualified to participate int
such a primary, to adopt some other ^
method for the_ nomination of candi
• dates for office, but when participa
tion in the direct primary is decided
on bv such party authorities, the time
when the same is to be held, the con
duct of same, the appointments of
judges and clerks, the method of
holding the election and returning the
ballots, the appointment of commis
sioners to canvass the vote, the duty
of the State Board of Canvassers in
relation to declaring the result, the
provision for securing order at the
polls, the prevention of frauds in the
election, are all provided for in like
manner as in the general election, in
cluding provision for the payment of
the expenses of holding and conduct
ing the primary, payment of judges <
and clerks of election, furnishing nec
essary stationery and supplies, rent
of polling places, furnishing and dis
tributing ballot boxes and poll books,,
etc., in the same way and to the same
extent as in a general election. ,
„ Who May Vote |
Section 228 provides who may vote <
and includes “all persons qualified to (
vote at the election for which the
primarv is held, and not disqualified <
by reasons of other requirements in
the law of the party to which he be
longs:' (Italics added.) It further i
provides that no person shall vote
except for the candidates of the par- <
ty to which he belongs and which he
supported in the preceding election. ' <
The declaration alleges and the de
murrer admits that the plaintiff was 1
excluded from voting in the direct ’
primarv because of a i*esolution
adopted by the State Democratic i
Convention in 1924, pursuant to the <
authority of the Statute, declaring ■
that onlv white, persons should par
ticipate ‘in a Democratic primary. ■
Admission of Counsel
Counsel for defendants admit, as
of course thev must, that a statute of
a State which attempted to exclude
Negroes from voting in a Democratic
primary would be in conflict with the
Fourteenth Amendment of the Fed-:
eral Constitution (Nixon v. Herndon,j
273 U. S. 536), but insist -that the,
discrimination against the plaintiff j
complained of here was the act of an |
individual or a group of individuals,
acting as such, and therefore not
within the purview of the Federal
Constitution.
History and Circumstances
The history and circumstances of
the adoption of the Fourteenth and
Fifteenth Amendments to the Con
stitution have no place in this dis
cussion. For the present it is suf
ficient to point out that the Four
teenth Amendment determines that
persons born in or naturalized ac
cording to law are citizens of the
United States and of the State where
they reside. That no State shall
abridge the privileges and immuni
ties of any citizen or deny him equal
protection of the laws. To the States
it says that no law shall be made or
enforced to diminish any one of the
privileges and .immunities of the peo
ple of the United States, and it di
rects Congress to adopt such laws as
may be necessary to enforce the
amendment. As construed by the
Supreme Court (Civil Rights Cases,
109 U. W. 3: James v. Bowman, 190
U. W. 127), the first section of the
Amendment is a prohibitory measure
and its prohibitions operate against
States and not against private per
sons. < 4
The Point at Issue
The point, therefore, on which this
case* turns is whether the act of the
election officers—the defendants—was
an official act or a personal act, that
is to say, was in the performance of
a duty enjoined on them by statute
or was merely individual and per
sonal and authorized by a right in
herent in the political organization to
which they belong. Defendants say
that the iatter is the correct view.
That affiliation with_a political party
is not a matter of right but of party
regulation and that the legislature
as such has no authority to flx stand
ards or qualifications of membership.
Grigsby v. Harris, 27 F (2d) 942.
They say in effect that there is no
legal ban on the formation of a po
litical party based wholly on color or
on religious belief or on sex or any
other standard which the party
chooses to adopt, and that because of
this, the General Assembly of Vir
ginia in recognizing the right made
no delegation of power but only rec
ognized the existence of the power
where it has always resided.
The Way Out
There can be no doubt, at least so
far as the State of Virginia is con
cerned, that a political party way
refuse to avail itself of the privi
leges of the direct prjmary and may
nominate candidates to be voted for
in a general or special election in any
of the ways in which such nomina
tions were made before the introduc
tion of the primary. Candidates foi
public office may be made such by
petition, by action of a caucus, or by
a convention. Indeed they may be
nominated in primary conducted, by
the party under its own rules and at
its own expense. But if because of
the greater safeguards which the law
throws around a legalized primary,
or because in such case the expense
is borne bv the State, a party elects
to adopt this method of naming its
candidates for public office, it may
do so and still preserve the absolute
right to determine \\ho shall partici
pate, is a much more delicate ques
tion. •
A Modern Proposition
The primary as a means of naming
candidates for a place on the official
ballot is comparatively modern. Its
spread in the last quarter of a .cen
tury has been steady and it is today
in practically every State the exclu
sive method adopted by the two great
political parties for the nomination
of candidates for office, State and
Federal. Its growth and adoption
as a vital part of the election system
arose because of the importance to
the public to “give vitality to the
constitutional guaranty of a free and
untrammeled ballot.”
Judge Keith’s Language I
This purpose may not be better
stated than repeating the language
of Judge Keith in Commonwealth v.
Willcox, 111 Va., page 859, as fol
lows :
“We know, as a matter of common
knowledge, that the purpose of hold
ing a primary election is to select a
candidate to'be voted for by a party
organization at the ensuing genera^
or special election. \\ e know^ that
the person selected at the primary
election to be voted for at the general
or special election will receive the
votes of the members of the party to
which he belongs and for which the
primary Is held, and if both political
organizations, or all political organi
zations, into which a community is
divided, held primary elections, it
necessarily follows that the person
chosen at the primary becomes the
nominee of his party to be voted for
at the general election, and that one
of the primary nominees will ulti
matelv be elected to the office.
“In* other words, the primary when
adopted by a political party becomes
an inseparable part of the election
machinery, and if a candidate to be
voted for at the general election is to.
be selected at a primary, it is impos
sible to secure the regularity and
purity of the general election without
n the first place guarding against ir
regularity^, and fraud at the primary
ilection. The primary election con
stitutes a necessary part, and fulfils
in essential function in the plan to
promote honesty in the conduct. of
elections—elections which shall faith
fully reflect and register the un- |
pought will of the electors.
“If there be fraud in the primary
Section, which is the very root from
,vhich the whole s.ystem of regulation
springs, it is vain to regulate the
;onduct of general elections, for the
fraud by which the nominee at the
primary election is chosen enters into
md is an ineradicable constituent in
;he result. However fair the general
Section may be, if at that ejection
rien have no choice but to vote for
■andidates who have been nominated
>y fraudulent practices at primaries.
>r else to desert their party, which
vould be in most instances but to
hrow away their votes without
ichieving any good resu’t. the effect
>f the election must be the consum
nation of a fraud and tne d°fnat of
he will of the people, for ‘of thorns
nen do not gather figs, nor of a bram
ble bush gather they grapes.’
“We are of opinion that section
122-0 is not only ccgnate and ger
nane to, congruous with and in fur
therance of the object expressed in
he title of chapter 10 of the Code,
which fully satisfies the requirements
)f the Constitution, without resort to
iny liberality of construction, but
:hat primary elections in their nature
have such a relation to and bearing
upon general elections, that the omis
sion to bring them within the law
would have left the plan devised by
the legislature for securing the regu
larity and purity of elections wholly
abortive and ineffectual.”
What the Supreme Court Said
In Nixon v. Herndon, supra, the
Supreme Court said that ‘ the same
reasons that allow a recovery for de
nying the plaintiff a vote at a final
election allow it for denying a vote
at the primary election that may de
termine the final result,” and in con
struing a statute of Texas providing
that “in no event shall a Negro be
eligible to participate in a Demo
cratic Party primary held in the
State of Texas, etc.,” declared the
statute an infringement of the Four
teenth Amendment.
Dodging the Issue
The statute of Virginia, unlike that
of Texas, does not in terms exclude
the Negro, but gives to the party
participating the right to do so. The
result is the same. The legislature,
pursuant to constitutional authority,
having undertaken to regulate pri
mary elections and to authorize them
to be held at the public expense and
to provide the same rules and regu
lations applicable to an election, may
not indirectly any more than it may
directly exclude a duly qualified voter
who declares himself ^to be an ad
herent to the party participating in
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the primary from thje exercise of his
right of suffrage.
The Fourteenth: Amendment
The Fourteenth Amendment com
pels the adoption of what is called
impartial suffrage. Its purpose was
to establish all over the United States
one peop e and that each of these
may understand the constitutional '•
fact that his privileges and immu
nities cannot be abridged by State ,
authority, and that these rights are
not confined to any class or race but,
comprehend all within its scope. The ,
General Assembly of Virginia hav
ing provided the primary as a meth
od (though optional) for the nomi
nation of candidates and the Supreme
Court of Virginia having declared it
Continued cn page S .. 1
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mtySomh
ttdatatfufimfan [
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When yan amah your hair, learn fa
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FOUND OPEAT'RELIEF.
Power, W. Va., Feb. 9, 1921.
Mr. L. J. Hayden,
224 West Broad Street
Richmond, Va.
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Daubergville. Pa., March 25, 1928
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224 West Broad Street
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Phone Randolph 4184 Residence Phone Rudolph 3167
1816 HULL STREET, SOUTH RICHMOND, VA.
The latest style funeral equipment. Caskets, either metallic,
mahogany, oak, etc. Prices the lowest, consistent with service.
Orders received at all hours, and wiH receive immediate at
tention. Automobile Service.
C. S. CUNNINGHAM H. L. MINOR
CUNNINGHAM & MINOR
507 N. Fifth Street. Richmond, Va.t Phone Randolph 3052
Service Available At All Hours. Satufactioa Gaiaiai.
Your Patronage It Sotdted.
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