of the votes at the general election if he had not gone into that election upon the prestige and with the advantage of his claimed nomination. In our opinion there is in the State law not only a total lack of authority for the "resolution" but a positive inhibition against the same as has been stated at length above under "B (b)." if the claim is made that the State law did warrant the "resolution," it becomes important to ascertain whether that warrant (if it existed) was valid.

But

By the terms of the fourteenth amendment all members of the negro race "born or naturalized in the United States and subject to the jurisdiction thereof" are made "citizens of the United States and of the State wherein they reside"; their "liberty" may not be taken away or impaired by a State "without due process," nor can they, by a State, be denied "the equal protection of the laws."

One of the great purposes of the fourteenth amendment-and the sole purpose of the fifteenth--was forever to render inoperative every species of political discrimination against the negro, as such, then (or thereafter) embodied in State laws. The following excerpts from well-considered opinions are sufficient to establish and illustrate the proposition:

Gibson v. State (162 U. S. 565): “Underlying all of those decisions is the principle that the Constitution of the United States in its present form forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race. All citizens are equal before the law."

Plessy v. Ferguson (163 U. S. 540): "The object of the amendment was undoubtedly to enforce absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color or to enforce social as distinguished from political equality

It is true that race has been used (validly) as the basis of classification in varying forms of State legislation, but in no case has race or color been validly used as a pretext for discrimination, and especially discrimination in political matters. Jim Crow laws have been sustained, but they operated equally against both white and blackthe white man could not lawfully occupy space provided for the negro, nor could the negro lawfully occupy space provided for the white person, and the facilities for each were required to be equal. In respect to separate schools, so far as the law was concerned, it required equal accommodations and prohibited attendance by whites. upon negro schools in the same manner it prohibited attendance by negores upon white schools. Such valid prohibitions as there have been against intermarriage have operated equally upon white and black. In laws of the character illustrated there was no discrimination, per se, against or in favor of either race; there was classification but not discrimination. And, more, the classification was based upon substantial grounds, having a true relation to public peace and general welfare; it was not arbitrary and no real injury was done any member of either race by reason thereof. The whole rationale of the valid classification which has been used under the police power of the States repudiates the idea that the power to "classify" can be used as a justification for a power to discriminate against the negro in respect to political rights and privileges.

The right to participate in primaries, or other forms of nomination, is a political right-at least in Texas. For the supreme court 101521-24-PT 3- -11

of the State (as has been pointed out in another connection) has so declared. It is a part of the ancient right of the people to assemble. It is a part of their suffrage. In Gilmore v. Waples (108 Texas, 167, 173) it is said:

The liberty of the electors in the exercise of the right vested in them by the Constitution to choose public officers on whatever principle, or dictated by whatever motives they may see fit, unless these motives contravene common morality, and are therefore criminal, can not be denied. It seems to me as absolute as the right to pursue any trade or calling, and therefore their right to associate and organize for that purpose is equally great.

See also Morris v. Mims (224 S. W. 587) to the same effect. "The right to choose candidates for public offices whose names will be placed on the official ballots is as valuable as the right to vote for them after they are chosen and is of precisely the same nature." (State v. Junkin, 85 Nebr. 1, 23 L. R. A., N. S. 839; Ladd v. Holmes, 40 Oreg. 167, 91 A. S. R. 457; 9 Ruling Case Law, pp. 1064, 1072, and cases there cited.)

If there be anything in this doctrine announced by the Texas court and the courts of other States, it must be clear that the destruction of the right to take part in nominations because of the accident of race or color revivifies and resestablishes the very conditions which the fourteenth and fifteenth amendments were designed to remove. Political inequalities imposed by law because of racial characteristics is the thing which the courts have said was to be prevented. (Gibson v. State, 162 U. S. 565; Plessy v. Ferguson, 163 U. S. 540.) But 50 years after the adoption of those measures we find negroesas such, and solely because they are negroes-excluded from any part in making nominations in a State whose highest court has declared its law to be that the right to make, and to participate in the making of, nominations is equal to the right to assemble and the right to vote for the nominees. With such conditions before us, it is not at all necessary to invoke the prohibitions of the fifteenth amendment or to show that those inhibitions pertain to nominations--in order to demonstrate the invalidity of the State's action; the fourteenth amendment is all sufficient for the purpose.

This must be true, because the law of the State is that the citizen has the constitutional right of assembly, which right extends to association in and into political parties for nomination purposes. The law of the State also is that the right to participate in the nomination is equally as well protected as the right to vote for the nominees at the general election. Such being the nature and essence of the right involved as a matter of State law, it must be clear that the right inheres in every citizen of the State who is also a citizen of the United States with absolute equality. And a law, or a custom or usage or regulation based upon a law, which destroys this equality in order to be valid must be justified upon a proper exercise of the power of classification, else there can be no essential due process. It has already been shown, we think, that race or color of itself can afford no justifiable basis of classification in respect to matters of political right; the idea that such could afford reason for classification in such matters is fundamentally at war with the concept and purpose of the amendment. Said the court in Gibson v. State, supra:

Underlying all those decisions is the principle that the Constitution of the United States in its present form forbids, so far as civil and political rights are concerned, discrimination by the General Government or by the States against any citizen on account of his race.

But if the basic idea of the amendment itself did not preclude the use of race or color for classification purposes in State legislation affecting the civil or political rights of citizens, and we were, therefore, relegated to the other and more general principles of due process the vice would still plainly exist. Because of the due process clause the exercise by a legislature of the power to classify must rest upon some distinction in fact, and this distinction must have a substantial relation to the public health, public safety, public convenience, or general welfare (Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150; A. F. & S. F. Ry. Co. v. Vosburg, 238 U. S. 56). Legislative distinctions lacking the support of facts constituting such a relation deny due process and, perforce, are invalid under the general purposes of the fourteenth amendment. And upon what reasoning can an argument be founded which seeks to establish a relation between mere race or color, on the one hand, and the public welfare, on the other hand, in respect to voting or voice in nominating procedure? Intellectual processes and individual impulses (personal judgment), and not the color of the body or the accident of birth, determine for each man whether he believes in, and proposes to adhere to, the principles of Democracy or to the principles of Republicanism-or neither. Whether a negro is in fact a Democrat or a Republican, or an adherent of some other political faith, is a question of individuality with which his color has nothing to do. And whether he votes one way or the other does not justly concern the sovereign-if he is a qualified elector his right to vote as he chooses must be admitted. His constitutional liberty of judgment destroys the possibility of there being a relation between the matter of his political affiliation and the matter of the general welfare sufficient to justify legislative classification. A State law, or a regulation based upon a State law, proceeding upon any such supposed relation is, patently, arbitrary and, therefore, void. It does not accord due process and, consequently, it fails because of the fourteenth amendment and without contributing force from the inhibitions of the fifteenth amendment.

But since the State law-as expounded by the highest courtestablishes the proposition that the right to participate in nominations inheres in the citizen (if he is a qualified elector) because of the right to assemble and because of the right of suffrage (Gilmore v. Waples, and Morris v. Mims, supra), a State regulation such as we are considering is within the prohibitions of the fifteenth amendment, separately considered. To sustain this view it is not necessary to assert--and we do not contend-that the right of the citizen to participate in primaries comes from the Federal Constitution. Manifestly it does not. That right is vouchsafed and protected by the State constitution (Gilmore v. Waples, supra). But a negro is a citizen of the State and of the United States by reason of the terms of the fourteenth amendment. And the right of the citizen to a voice. in the nominations-as has been stated with tiresome iteration-is equal to his right to vote. Perhaps a better statement of the matter is this: The right to this voice is a part of the right of suffrage. (State v. Junkin, 85 Nebr. 1, 23 L. R. A., N. S. 839; Ladd v. Holmes, 40 Oreg. 167, 91 A. S. R. 457; 9 Ruling Case Law, pp. 1064, 1072.) If this be true and the State's highest court has so declared the application of the fifteenth amendment is patent. For it says:

*

The right of citizens of the United States to vote shall not be denied or abridged. * * on account of race, color, or previous condition of servitude..

The amendment does not say merely that the right "to vote shall not be denied"; the prohibition is against abridgment-i. e., limitation, restriction, curtailment, hindrance, impairment of the right. Neither does the amendment say that this denial or abridgment shall not be indulged in respect to congressional or senatorial elections; the word "election" is not used at all. The prohibition is exactly as broad as suffrage (in any of its aspects) in any State. An illustration of this may be found in the case of Myers v. Anderson (238 U. S. 368), where unconstitutional racial and color discrimination had been practiced under warrant of State law in respect to suffrage in a municipal election at Annapolis, Md. See also Guinn v. United States (238 U. S. 347). In a State, such as Texas, where local law makes the right to take part in nominations equal to or a part of the right to vote, it seems clear to us that the prohibitions of the amendment operate coextensively with the suffrage right as there recognized. Certainly in such a State the entire denial of any right to a part in the nominations works an "abridgment" of the right to vote. And if this abridgment is made on account of race or color it is within the prohibitions.

* * *

The fifteenth amendment "invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the elective franchise on account of race, color, or previous condition of servitude. The right of suffrage is not a necessary attribute of national citizenship, but exemption from discrimination in the exercise of that right on account of race is; the right to vote in the States comes from the States, but the right of exemption from the prohibited discrimination comes from the United States." (6 Ruling Case Law, sec. 273, p. 288; Pope v. Williams, 193 U.S. 621; McPherson v. Clacker, 146 U. S. 1; United States v. Cruikshank, 92 U. S. 542.)

If a State gives the citizen, as a citizen, a certain political right, the fifteenth amendment (of its own self-executing force) extends that right to all citizens of "race or color." Because of this the amendment, automatically and in spite of the States, eliminated the word "white" from the suffrage provisions of local constitutions and statutes and rendered inoperative all reinsertions of the word. (Guinn v. United States, 238 U. S. 347; Myers v. Anderson, 238 U. S. 368.) The "resolution" deals with political rights; if the power exerted therein was State power, or under State warrant, the "resolution" was void. The "restriction" of the fifteenth amendment "is coincident with the power and prevents its exertion in disregard to the command of the amendment." (Guinn v. United States, supra.)

And while the prohibitions of the fifteenth amendment are selfoperative (Guinn v. United States, and Myers v. Anderson, supra), Congress, in the exercise of the power expressly given "to enforce this article by appropriate legislation," has enacted various statutes which are sufficient (of themselves) to make the "resolution" void and its promulgation and enforcement criminal, whether the "resolution was adopted and carried out under color of State law or without such warrant. Some of these statutes will now be mentioned.

Every person who under color of any statute, ordninance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress. (Sec. 1979 U. S. R. S.; sec. 3384 Barnes' Federal Code, 1919.)

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects or causes to be subjected, any inhabitant of any State, Territory, or District, to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color or race, shall be fined, etc. (U. S. R. S. 5510; C. C. 20; Barnes, sec. 9697.)

* * *

The State having given the citizens the right to participate in the making of nominations, the fourteenth and fifteenth amendments gave and "secured" to negroes the "rights, privileges, or immunities" to be free from discrimination in the enjoyment of those rights which the State gave. (6 Ruling Case Law, sec. 273, p. 288; Pope v. Williams, 193 U. S. 621; Myers v. Anderson, 238 U. S. 368.)

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States * * * they shall be fined, etc." (Sec. 10183 U. S. Comp. Stat., 1916; U. S. R. S. 5509; Ġuinn v. United States, 238 U. S. 347; United States v. Moseley, 238 U. S. 383.)

The "right or privilege" to be free from racial or color discrimination in respect to the aforesaid right given by the State is the "right or privilege" in relation to which the committeemen, and those who followed them, conspired "to injure, oppress, threaten, or intimidate"

the citizen.

Third. If two or more persons in any State or Territory conspire

for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws * * * or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified persons * * * as a Member of Congress of the United States * * * the party so injured or deprived may have an action for the recovery of damages, etc. (Sec. 3393, U. S. Comp. Stat. 1916; U. S. R. S. 1919; Barnes' Federal Code, 1919, sec. 3385).

or

The "laws" mentioned in the first clause of the excerpt quoted are the laws of the State. The "laws" The "laws" having given the citizens the right to take part in nominations, the committeemen et al. conspired to deprive negroes of this right and, perforce, "for the purpose of depriving" them "of the equal protection of the laws, of equal privileges and immunities under the laws.' The kind of citizen mentioned in the second clause quoted is a "citizen who is lawfully entitled to vote" and the object of the prohibited conspiracy is to "prevent by force, intimidation, or threat" such a citizen "from giving his support or advocacy in a legal manner toward or in favor of the election of" a Member of Congress. The latter clause recognizes a distinction between the act of "voting" at such an election and "support or advocacy." These negroes were "lawfully entitled to vote" according to State law; and by State law (Gilmore v. Waples, supra) plus the fourteenth and fifteenth amendments they were entitled to enter the primaries and thereby "in a legal manner" to give their "support or advocacy" toward" the "election" of a Member of Congress. The purpose of this statute was to protect all Federal rights "in a lump." (United States v. Moseley, 238 U. S. 383.)

It may be answered that since these statutory provisions carry penalties for their violation their effect must be regarded as directed