The Birmingham age-herald., 1904-03-06

| Ns. NeWDolds IS How. olls 0l0sl or HI HI events. it must appear from the record 1 by clear and necessary intendment. that the federal question was directly in- l voked so that the state court could not l have given judgment without deciding l it It Is equally well settled that if the | decision of a state court rests on an in- 1 dependent ground-one which does not necessarily include determination Of the 1 federal right clalmed-or upon ground broad enough to sustain it without de- eding the federal question raised this court has no jurisdiction to review the 1 judgment Of the state court. CNew or leans vs New Orleans Water Works com l pany 142 L. S. 49 Eustis vs. Bolies l5O L. s. S61; Dover vs Richards l5l U. ;. 65S-666; Wade vs Lawder, l0 Y. S 634-62SD Must Answer Questions of Jurisdiction l In every case which comes to this court on writ of error or appeal the question of l Jurisdiction must be first answered, | whether propounded by counsel or not. 1 Defianee Waterworks company vs. Deli ance, decided at this term, 19l L. $. lS4) I In No. 337, in which an action was begun l against the registrars for damages the case was decided upon demurrer to the declaration The supreme court of Ala bama placed It's decision affirming the lower court. which sustained the demur- Ter, upon two grounds, as follows: "If we accept (without deeiding) as l correct the insistence laid in appellants brief that section 1S6 of article VIII. of the constitution of 1901 Is void because repugnant to the fourteenth and fifteenth | amendments of the constitution or 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 recovery of damages against them. 'On the other hand. if that section is the source of their authority. the juTis- diction is expressly conferred by it upon the defendants as board of registrars to determine the qualifications of plaintin as an eleetor and of his right to be reg istered as a voter. For their judicial act of refusing to register him predicted upon that determination, they are not liable in this action. u7 Am. X Eng. Ency Law Cd ed) pp. 727, 72S. and notes.)-Af- firmed" G3s Ala. 164)
 A consideration of the plaintiffs peti- ton shows that it attacked the provi- sions of the Alabama constitution regu- lating the qualifications and registration of the electors of the state as an attempt to disregard the provisions of the four teenth and fifteenth amendments of the constitution of the United States, by qualifying the whites to exercise the elec- tive franchise and denying the same rights to the negroes of the state II IS alleged that sections 1s0 1S1, 1S2, 1S4, 1S5, 1S6 1S7 and 1SS of the Alabama constitu- ton, which took effect on November 2S. 1901 and under which the defendants were appointed registrars. and were acting at the time, were enacted by the state of Alabama. through it's delegates to the constitutional convention, to deny and abrldge the right of the plaintiff and oth- CTS of his race to vote in the state on ac- count of their color and previous can dition of servitude, without dlsfranehis7 ing a single white man in the state.
 Federal Right and Constitution.
 A consideration of the allegations of this complaint, to which the demurrer was sustained, makes apparent that the federal right for which the plaintiff sought protection and the recovery of damages was that secured by the amend- ment to the federal constitution, which prohibits a state from denying to the cit izen the right of suffrage because of race. color or previous condition of servtude 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: 1t has planted It's deci- sion upon a ground independent of the alleged state action seeking to nullify the force and effect of the constitutional
  frage. 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 It's purpose to prevent negroes from voting and to exclude them from regis tration for that purpose. no damage has been suffered by the plaintiff. because no refusal to register by a board thus con- of stitution could have the effect to disqual- ify legal voter otherwise entitled to eX- ereise the elective franchise. In such 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 deci- sion This view renders 1t unnecessary to consider whether. when a proper case was made for the denial of the right of suffrage 1t 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 groum 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 en- forcing the provisions of the state con- stitution which 1t was charged were adopted for the purpose of disfranchsng the negroes and permitting white men only to exercise the elective franchise. In the mandamus case the decision of the state court was:
 "The petition in this case Is for writ of mandamus to compel the board of reg istrars for Montgomery county to reg ister the petitioner as an elector. It al- leges that sections 1s0. 1S1. lS3, lS4 1855, 1s6 1S7 and 1SS of article VIII or the con stitution of 1901. fixing the qualifications of electors and prescribing the mode of reglstrat tion 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 man. damus issue to the board of registrars commanding them to register as quail fled elector of the state of Alabama, upon the books provided therefor, the name of petitioner and to issue to him certi- ficate of the fact in disregard Of said section 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 strick- en down on account of being unconstitu- ,, a,,tiraIv clear that the hoard