The Washington bee., 1910-11-26


allege substantially that their father
and grandfather, respectively, would
have been entitled to vote IN Mary
land except for the word white III
the Maryland Constitution which was
in force prior to January 1, 1868.
That they have heretofore voted at
municipal elections and were denied
registration by the defendants acting
as registers by reason of the provision
of the Maryland law of 1908, solely
and avowedly on account Of their
race and color; that is to say, because
in the case of Anderson, he could not
on account of his race and color have
voted prior to January I, 1868; and
in the cases of Howard and Brown,
because their father and grandfather,
respectively, could not On account Of
race and color have so voted.
The plaintiffs all allege that in all
other respects except their race and
color, the plaintiffs met ali the re-
quirements of the law emitting them
to registration.
To these declarations, the defend
ants have interposed a demurrer on
the following ground:
1.
cient IN law and bad III substance.
2. That said declaration fails to
show any ground of jurisdiction in
this honorable court over or IN re-
spect to the parties, matters and
things set forth therein.
3. That by the laws under which
they, the defendants, were appointed
and acting, the defendants were
charged with and exercising in re-
spect to the transactions, matters
and things complained of and set
forth in said declaration, duties,
functions and powers of a judicial
nature; that in the discharge and
exercise of said duties, functions and
powers, they, the defendants, were
not and cannot be held legally re-
sponsible for anything more than an
honest and faithful exercise of their
! Judgment; and that said declaration
| fails to allege that the defendants or
either of them, did or failed to do
any act 10 the prejudice or injury of
| the plaintiff, either wilfully, mali
ciously, frauduIently or cOrruptly, so
as to render them or either of them
| legally liable to the plaintiff in the
premises.
4. Because the declaration charges
on its fact that the Act of the Gen
eral Assembly of Maryland, 1908,
Chapter SIS, under which, as the
declaration further averG, the defend
ants were appointed and acting, was
and is illegal, unconstitutional and
void; and the declaration fails to
show that the defendants were au-
! thOrlZed to register or charged with
any duty of registering the plaintiff
at the time he presented himself
| for registration, as set forth in
! said declaration, under any other
statute of law: that, therefore, upon
the averments and charges of the
! declaration, the defendants had no au-
| thOrity and were charged with no duty
to register the plaintiff when he pre-
sented himself to be registered, as
set forth in the declaration, and ac-
| COrdlngly are not legally liable to the
| plaintiff in the premises.
| ). Because the defendants are not
subject or liable to any action for
damages for refusing to register the
plaintiff under said Act Of 1908, Chap
| ter SIS, which, as charged and shown
|
! defendants to register the plaintiff
when lie presented himself for regis
tratIon, as set forth in said deClara-
ton, and which said Act, as appears
from its context, imposed criminal
| penalties upon the defendants for
| any violation of its terms and prOvi-
sion.
9. And for other reasons and
grounds to be assigned at the hearing
The demurrers having been set for
| hearing, the court has had the benefit
| of a very full oral presentation of the
| law by the able and distinguished
counsel who have appeared for the
plaintiffs and defendants. and they
have also assisted the court by learn
ed briefs.
I. The first proposition urged by
the defendants IS that the declarations
| are insufficient IN law, because they
| do not allege that the defendants act
| ed Wlltully or maliciOusly in refusing
registration to the plaintiffs.
1t IS true that in refusing registra-
ton to the plaintiffs, the registers
were acting in their official capacity
and that by the law of Maryland
under which they were acting, they
were required to refuse registration
| to the plaintiffs. But, in my judg-
ment, there are two considerations
which affect this defense.
If the provision of the State law
under which they acted in refusing
registration is a void provision, it
affords them no protection; Ex parte
Siebold, 100 u. S. 81. 80: and if by
a valid law o. the United States, a
right Of action is given to the plain
tiffs as remedy for denial of regis
tration, then their right of action is
based upon such valid law and is re-
ferablc to it and is governed by its
terms.
The consideration of the question
whether or not the provision of the
Maryland law under and by virtue of
which the plaintiffs were denied
registration, and, in consequence.
denied the right to-vOte, IS a valid
provision, lies at the foundation of
these suits and must of necessity be
dealt with at the threshold.
BY the Fifteenth Amendment to the
Constitution of the United States,
proclaimed March 80. 1870, the fol-
lowing provisions became part of the
e