San Antonio light. [volume] (San Antonio, Tex.) 1911-1993, 1924-04-06

the defendants? and (b) Does the act
in question abridge the privileges OF
immunities, or is the right TO vote
denied or abridged because of race or
color of the plaintiff, negro citi-
zen of the United States?.
The power of a court of equity by
way of injunction has never in Eng
land, nor in America, been extended
10 political affairs. The issue raised
BY the petition as whole is clearly
the assertion of a political right
granted by the Constitution of the
United States and denied by an act
Of the State of Texas. The remedy
sought is that the hands of the. de-
PENDANTS be stayed and enjoined from
enforcing the act. The petition,
therefore, is seeking from this court
of equity mower aud authority which
is denied it by law. This position
is supported by elementary primer
pies of jurisdiction and particularly
by the following authorities; Green
VS.. Mills, 80 Fed. So, being an opin-
ion by Il Circuit Court of Appeals
rendered by Justice Fuller who sub
sequcntly, for many years, sat as
chief justice of the Supreme Court
of the United States: Giles VS.. Har-
ris. $50 L. s.. 474: in Re Sawyer,
124 U. s., 200; Walls, ct al, VS..
Brundidge, 100 s. W. Ark 230
Ruling Case Law. Vol. 10, p. 342,
Sec. 81 and numerous AUTHORITIES
there cited.
Plaintiff contends that the act OF
March 1. 1913, which now appears in
the statutes as Section 266 of the
Judicial Code, enlarged by statute
the jurisdiction of a court of equity
and gives it cognizance Of suits which
involve the constitutionality of an
act of a state in requiring the pres
ence of three judges in passing upon
question OF such Importance. The
purpose of this act was not intended
to, and does not, enlarge the equity
powers of this court. Generally speak
ing the object Of the statute was to
limit the powers of judge of the
United States District Court, who
Heretofore had passed upon the con.
stitutionality of state laws, and had
exercised singly the right TO award
or withhold injunctions as to their
enforcement. The amendment SO far
as the presence of three judges is con-
cerned, limits their functions to hear
ings upon the question of issuance OF
temporary introductory restraining
orders, and does not extend to the
case on its merits. Before the ad-
ditional judges should be called to the
assistance Of the district judge sit
ting in the case it must appear from
the allegations in the petition that a
cause of action is stated which on
its face entities the plaintiff to the
relief sought: therefore the court as
now constituted is authorized TO judge
of the sufficiency of plaintiffs petit
ton in point of law.
The court sustains the first grounds
mentioned.
This might render it unnecessary to
decide the second question, but 1t
has been we'll and clearly presented,
and even though it may be unneces-
sary to decide it, nevertheless the
parties, because of the Importance OF
the questions, are entitled TO the
Judgment and opinion of the court
upon the exceptions which directly
and indirectly rest upon 1t.
The answer TO the second question
is practically found in the answer
TO the question as to whether or not
q primary election is that character
of election that comes within the
meaning of the Fourteenth and Eff
teenth Amendments to the Constitu-
ton Of the United States. General
ly speaking, primary election is
understood TO be one which is limited
to qualified electors Of a political
party for the purpose of nominating
that party's candidates for state or
national offices TO be voted upon at
a future election of the people gen
orally. The Revised Statutes of Tex
as, Article 30Sj defines primary
election as ian election held by the
members of an organized political
party for the purpose of nominating
candidates Of such party to be voted
for at at general or special election,
or to nominate the county execu-
tive officers of a party" Various
and elaborate provisions and require
ments as to elections are set forth in
the Revised Civil Statutes of Texas
in Chapter 10-a. and amendments
thereof.
An authority has tersely stated
that primary elections are not "elec-
tons" but merely nominating devices.
The right and power of the state
to promote the health and general
welfare of its people is a right re-
served to itself, and is not granted
to the national government; that is
to say, it retains its police powers,
which necessarily include the power
to regulate its internal and political
offo;~, and ta onant cta tutas covering
elections within its borders.
There can, therefore, be no ques-
ton that the state has the power and
authority to pass laws of that charac-
ter, nor is any doubt Of it raised by
the pleadings or argument here, the
only question presented being as to
whether or not the state had the
right and power to pass an act which,
as plaintiff contends, had the effect
to deny and abridge his right to vote
because of his race or color. The de-
cisions of the various states passing
upon and interpreting the extent to
which they may 60 IN limiting the
rights of voters is in more or less
conflict, and the reasoning OF the
great lawyers and judges upon each
side of the controversy are enlighten-
ing and fairly well balanced. There
seems, however, to be no dispute as
to the definition of "primary cleo
ton" A Louisiana case, State VS..
Mitchell, 46 So, 435, declares A
primary is nothing but a means OF
expressing party preference, and i
would cease to be that if by the adj
mission of outsiders its result might
be the very reverse. IL, therefore,
there could not be a primary under
our constitution without the admis-
sion of outsiders, the consequences
would be that primary would be
impossible. 1t is also held that the
Legislature has the power to regu-
late primary elections, and prescrib
ing party tests. This is held in
Party VS.. Uhl. pac.. 1SS. The