source: Caselaw Access Project

author: HANNAY, District Judge.

license: Public Domain

text:
    UNITED STATES v. ONE CADILLAC COUPE. SAME v. THREE CADILLAC COUPES et al.
    Civil Actions Nos. 202, 204.
    District Court, S. D. Texas, Brownsville Division.
    Sept. 26, 1945.
    Brian S. Odem, U. S. Atty., and W. F. Leigh, Asst. U. S. Atty., both of Houston, Tex., and Chas. C. Bowie, Asst. U. S. Atty., of Brownsville, Tex., for plaintiff.
    M. J. Raymond, of Laredo, Tex., and Roy Buckley, of Mission, Tex., for claimants.
   HANNAY, District Judge.

This is a consolidated suit whereby the United States Government is seeking, in a civil action through libel proceedings, to secure the forfeiture of:

(a) One black 1941 Cadillac 5-passenger coupe, motor No. 5236394;

(b) Three Cadillac coupes, more particularly hereinafter described; and,

(c) One 1940 Ford Panel Body truck.

In the suits as originally filed, (a) was the subject matter of Cause No. 202 and (b) and (c) were the subject matter of Cause No. 204.

(a) This automobile was purchased in Detroit, Michigan, by one Antoine A. Isaac for the account of General L. Hernandez, of Mexico. Said Hernandez and Isaac, at the time of such purchase, were, and still are, residents of the Republic of Mexico. Said Hernandez was then a General and a Congressman of said Republic. Said automobile was transported to McAllen, Hi-dalgo County, Texas, where it was first placed in storage. Thereafter, while said car was attempted to be crossed into Mexico via the bridge between Reynosa, Tam-aulipas, Mexico, and Hidalgo, Hidalgo County, Texas, the said automobile was “detained for investigation” by the United States Inspector of Customs, L. B. Canion, then on duty at said bridge. This automobile was detained at about 11 p. m. on October 26, 1942.

Canion testified that he detained the automobile in question because he found said car with a coat of dust all over it. He stated: “It gave me the impression that it had been stored. * * * It appeared to me that the license plates had just been put on it. The screws that hold the license plates were shiny and bright and above the screws the dust had been removed in a crescent shape, like someone’s thumb had removed the dust. The car was very clean inside.” (See transcript of testimony, page 7.)

At the time of the detention the driver of the automobile was Christin Herrera Bravo. The car had no title papers, nor did it have a permit or license to be exported into Mexico. The driver Bravo, a mechanic, was dressed like a mechanic. Bravo testified that he was sent over from Reynosa to get the car; was told where he would find it, and that he found it exactly where he was supposed to find it; that it would have, and it did have, Mexican license plates on it. On the question of the presence of the car keys, Bravo made conflicting statements.

General Hernandez testified by deposition (see transcript, page 184), that he did send Isaac to the United States to purchase the automobile in question; that he did send a chauffeur to see if the car was in good condition before accepting it, but that he did not authorize the chauffeur to bring the car into the Republic of Mexico in violation of any law.

The record in the case shows:

1. The application for warrant for further detention was filed on November 10, 1942 (more than 10 days after October 26, 1942), in which it is stated that the Cadillac coupe in question was seized on November 3, 1942.

2. The warrant for further detention was signed by the Judge on November 10, 1942.

3. The petition of L. Hernandez for the restoration of the property was filed on January 9, 1943, in which he stated the automobile in question was purchased by his. agent in Detroit, Michigan, about October 19, 1942, and was transported to McAllen, Texas, and there placed in storage.

4. The summons, dated January 14, 1943.

5. On August 4, 1943, there was a dismissal, without prejudice to the claim of L. Hernandez.

6. On December 7, 1943, the answer of L. Hernandez to the libel was filed. In-this answer Hernandez admits he sent a mechanic to inspect the motor of the said automobile, but says that he did not authorize said mechanic to bring the car into-Mexico.

In view of the foregoing, the question to-be determined is whether or not said Cadillac coupe is properly subject to forfeiture.

Section 401, Title 22, U.S.C.A., provides-that whenever an attempt “is made to export” from the United States any article in violation of law, or whenever there shall be cause to believe that any such articles, “are being or are intended to be exported”' in violation of law, “the several collectors, comptrollers of customs, surveyors, inspectors of customs, and marshals, and deputy marshals of the United States, and every other person duly authorized for the purpose by the President,” may seize and detain any articles “about to be exported” in-violation of law and retain possession-thereof until released or disposed of as directed in the succeeding sections of the-Act. If, upon inquiry as provided in such-sections, the property seized shall appear “to have been about to be so unlawfully exported,” the same shall be forfeited to-the United Stales. Under Section 402 of the Statute, it is made the duty of the person making the seizure to apply with due-diligence to the Judge of the District Court which has jurisdiction over the place of seizure for a warrant to justify the detention of the property. The judge may grant the warrant only on oath or affidavit that there is known or probable cause to believe “that the property seized is being or is intended to be exported” in violation of the law. If the person making the seizure fails to make application for the warrant “within a reasonable time, not exceeding ten days after the seizure,” or if the judge refuses to issue the warrant, the property shall forthwith be restored to the owner or person from whom seized.

With reference to the car in question, there is no doubt that the Inspector of Customs who detained the car on the night of October 26, 1942, was a person duly authorized so to do. The only question then remaining is whether or not the detention was in effect a seizure. In my opinion it was. Bearing in mind the suspicious circumstances that were clearly apparent to the Inspector of Customs at the time of the detention, he had “probable cause” to make. same, and it is inconceivable that the car, after once being detained, would have been released. Therefore, the effective date of the seizure was on the night of October 26, 1942. See Dale v. Hartson, Collector of Customs, D.C., 289 F. 493, at page 495, where it is said:

“To constitute a valid seizure there must be an open, visible, possession claimed and authority exercised by the seizing officer; the parties must understand that they are dispossessed, and that they are no longer at liberty to exercise any control over the property. * * *
“ ‘Open’ means visible, exclusive, exposed to view, free from concealment, not constructive and imaginary, not merely nominal. 6 Words and Phrases, 4983.”

Inasmuch as the provisions of the statute with reference to the filing of an application for warrant were not complied with “within a reasonable time, not exceeding ten days after the seizure”, as a consequence the car in question should be restored to the person from whom it was taken, and it is so ordered.

(b) and (c). On November 30, 1942, an application for warrant for further detention of property was signed by A'. R. Kahn, Assistant Collector of Customs at Laredo, Texas. In such application it was stated:

“On October 29, 1942, there were found in the Martin and Martin Garage, McAl-len, Texas, two Cadillac automobiles, described as follows, which had been stored in this garage by Antoine Isaac, a resident of Mexico, D. F. Mexico:
“1 five-passenger Cadillac coupe, motor No. 5357656,
“1 five-passenger Cadillac coupe, motor No. 5350552.
“And on October 30, there was found in the Carpenter Chevrolet Company garage, McAllen, Texas, the following described automobile, which had been left at this garage for repairs by Antoine Isaac on October 26, 1942:
“1 five-passenger Cadillac coupe, motor No. 5346662.
“On November 7, 1942, there was found stored in the Roma Service Station, Roma, Texas, a 1940 Ford Panel-body truck, described as follows, which had been placed there by Antoine Isaac, of Mexico City, on October 27, 1942, for storage: 1 1940 Panel-body Ford truck, motor No. 18-5896258.”

Thereafter were set forth facts showing probable cause for the seizure of the above described automobiles. “Probable cause” simply means “good reason.”

On December 8, 1942, a warrant for the further detention of the above described property was duly signed and filed. On September 17, 1943, a libel was filed upon the above described automobiles, and on October 28, 1943, a monition was issued. Thereafter, on November 26, 1943, an answer to the libel above mentioned was filed by Salin A. Noemi, A. Ojeda Caballero, Enrique Rivera Artega and D. Valles Jordan, all citizens and residents of the Republic of Mexico, in which answer, in paragraph 18, they state:

“Each of these claimants further urges in his behalf the failure of the seizing officers to comply with Section 402, Title 22, U.S.C.A. in this, that after seizure of his automobile said seizing officers permitted more than ten days to elapse before applying to the court for a warrant of detention as provided by law. That such failure on the part of the seizing officers constitute a lack of due diligence contrary to the form of the statute of the United States of America above referred to.”

The testimony in the case was duly submitted, and the case is now before the court for decision. A question to be solved in order to decide the case is, “Was the detention of the automobiles in question in legal effect a seizure?” In order to determine this question it is necessary to first determine whether such detention was by an officer authorized to make such a seizure. The parol evidence introduced on the trial of this case discloses that Customs Agent Aaron Quick, having “found the automobiles in Martin and Martin Garage, McAllen, Texas, Carpenter Chevrolet Company garage, McAllen, Texas, and Roma Service Station, Roma, Texas,” placed some character of stay or hold order upon same by requesting the operators of the respective garages to hold the cars until further orders. It is contended by the Government that a Customs Agent does not have the necessary authority to make a legal seizure. However, in view of the definition of seizure, hereinabove defined, such is not the case. In the case of United States v. Story, 294 F. 517, 519, from the Fifth Circuit, it is-held:

“The regularity of the seizure is not a necessary condition to a condemnation of the things seized, providing there is sufficient ground for an adjudication of a forfeiture. Property may be seized by a private person, acting at his peril, and, if a cause of forfeiture is shown to exist against it, condemnation will follow, notwithstanding the seizure was by an unauthorized person. The Caledonian, 4 Wheat. 101, 4 L.Ed. 523; Wood v. United States, 16 Pet. 342, 10 L.Ed. 987; Taylor v. United States 3 How. 197, 11 L.Ed. 559.”

Then, too, having adopted the seizure as made by the said Customs Agent, who, by the way, prepared the application for warrant for further detention of all the automobiles involved in this consolidated suit, such adoption would give it a retroactive effect. See Dodge v. United States, 272 U.S. 530, page 572, 47 S.Ct. 191, 71 L.Ed. 392, opinion by Justice Holmes.

The seizure having been made by one authorized to make same, and the application for warrant for further detention not having been made within ten days from such date of such seizure, the sole remaining question to determine is whether or not such ten-day provision is mandatory and jurisdictional. In my opinion, it clearly is. See Section 402, Title 22, U.S.C.A. supra. In this connection the following cases are cited: United States v. 267 Twenty-Dollar Gold Pieces, D.C., 255 F. 217; United States v. 21 lbs. 8 ozs. more or less, of Platinum, D. C., 53 F.Supp. 971; Id., 4 Cir., 147 F.2d 78; and United States v. One Packard Automobile, D.C., 60 F.Supp. 993.

I further find that there was probable cause for the detention of each of the automobiles mentioned in this opinion, but, for the reasons above set out, said automobiles should be restored to the persons from whom seized.


author: CLARK, District Judge.

text:
    HUNSCHE v. SOUTHERN PAC. CO. et al.
    No. 24365.
    District Court, N. D. California, S. D.
    Aug. 6, 1945.

      John E. Truman, of San Francisco, Cal., for plaintiff.
    Dunne & Dunne and James H. Freeman, all of San Francisco, Cal., for defendants.
   CLARK, District Judge.

This is an action brought by Ada M. Hunsche as guardian ad litem for Ronald E. Wondra, her son, a minor of the age of eleven years, against the Southern Pacific Railroad Company, the Atchison, Topeka & Santa Fe Railroad Company and the Union Pacific Railroad Company, for damages by reason of injuries alleged to' have been suffered by Ronald E. Wondra.

The facts of the case are as follows:

The defendants were and are corporations doing business in the State of California and as a part of their business at Los Angeles in the State of California operate a railroad station known as the Los Angeles Passenger Terminal. This is a very busy terminal, some twenty-two thousand passengers and some forty thousand visitors passing through it daily. It has numerous entrances and walks provided for, and used by the traveling public. One of these walks or platforms (the one on which the injury complained of occurred) is used for the delivery of baggage to passengers. This baggage is generally handled by men, commonly known as “Red Caps”, and in handling it they use carts which are propelled by hand. There are some one hundred of these carts in use at this station. The defendants also permit service men to use the carts in handling their luggage when the carts are not being used by the “Rep Caps”. They are not kept in any inclosure and are not locked, blocked or fastened when not in actual use.

On the 7th day of May, 1943, the plaintiff with his mother, brother and sister were en route to Richmond, California, as passengers on one of defendants’ trains and it was necessary for them to remain in the station for some little time waiting the opportunity to board a train to their destination.

While the mother was busy arranging for their transportation, the son Ronald, 10 years of age, the plaintiff herein, in company with his older brother, 11 years of age, discovered one of these carts which was not in use at the time and decided to “take turns” giving each other rides. The elder brother rode first in the cart and Ronald pushed it, then Ronald got in and his brother pushed it. While Ronald was riding in the cart his brother stumbled and fell, causing the cart to turn over on its side. Ronald’s leg was hanging over the side of the cart and it fell on and fractured his leg.

The facts in this case, as above set forth, which are in any way material are not disputed and under such facts it is urged by counsel for the plaintiff “that the cart in question constituted an áttractive nuisance; that the defendant negligently, wrongfully and carelessly permitted it to remain on the walk or platform, as hereinabove set forth, and that the plaintiff was attracted to it by childish curiosity and suffered the injury set forth without any fault or want of care on the part of the plaintiff”, and that under the doctrine of what is known as the Turntable Case; Sioux City & Pacific Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, and the rule as laid down by the courts of California in the cases of Faylor v. Great Eastern Quicksilver Mining Company, 45 Cal.App. 194, 187 P. 101; Cahill v. E. B. & A. L. Stone Co., 167 Cal. 126, 138 P. 712; Skinner v. Knickrehm, 10 Cal.App. 596, 102 P. 947; and Hines v. Milosivich, 68 Cal.App.2d -, 157 P.2d 45", the plaintiff is entitled to recover for the damage sustained.

In addition to the cases cited by counsel for the plaintiff there are numerous other decisions in the State of California on the doctrine of “Attractive Nuisance”. This doctrine was first applied in this State in the case of Barrett v. Southern Pacific Co., 91 Cal. 296, 27 P. 666, 667, 25 Am.St.Rep. 186, in which the rule was laid down that “if defendant ought reasonably to have anticipated that leaving this cart (cart inserted in place of turntable) unguarded and exposed, an injury, such as plaintiff suffered, was likely to occur, then it must be held to have anticipated it, and was guilty of negligence in thus maintaining it in its exposed position.” Later, in the case of Faylor v. Great Eastern Quicksilver Mining Co., supra [45 Cal.App. 194, 187 P. 103], the Court said: “Those who place an attractive, but dangerous, contrivance in a place frequented by children and knowing or having reason to believe, that children will be attracted to it and subjected to injury thereby, owe the duty of exercising ordinary care to prevent such injury to them.” In the last cited case there is a limitation that mere attraction is not enough but the contrivance must be dangerous. So in addition to the “attractiveness” of the instrumentality the plaintiff must prove by a fair preponderance of the evidence that defendants knew or had reason to have believed that it was sufficiently dangerous that if children were attracted to it they would likely be injured thereby.

There is another limitation; that the contrivance must be artificial and uncommon as well as dangerous and capable of being rendered safe with ease without destroying its usefulness. Morse v. Douglas, 107 Cal.App. 196, 290 P. 465. The cart in the present case was a rubber tired “Red Cap” cart of which about one hundred were in use at this terminal. It was handled according to the custom and practice; there was nothing unusual about its use and there is no evidence that any child was ever before “attracted” by a “Rep Cap” cart; there is nothing uncommon about it; it is used extensively, not only at the Los Angeles Terminal but wherever there are railroad stations and “Rep Cap” porters. Such carts are useful and extremely necessary in handling luggage. They were being used as contended by the defendants, in the only manner the effective operation of this busy passenger terminal would permit. There is no evidence that the defendants could handle the carts differently than they were handled without destroying their usefulness for the purpose they were designed to serve, or that they had omitted that care and attention to prevent the occurrence of accidents which prudent and careful men ordinarily bestow. Union Pacific Railroad Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434.

There is no element of any trap or hidden danger in this case.

In this case, both as a matter of fact and as a matter of law, the attractive nuisance doctrine is not applicable in that the evidence does not meet the requirements of the rules laid down in the adjudicated cases in the State of California, as these rules require, as above stated, that the plaintiff must prove that the cart was an attractive and dangerous instrumentality which would naturally attract children; that the cart was novel in character or of a new or uncommon nature; that the cart was capable of being guarded and rendered safe, with ease, without destroying or impairing its usefulness; that the defendants failed to exercise that care and attention to prevent the occurrence of the accident which prudent and careful men ordinarily bestow; that the cart constituted a trap or hidden danger; that the defendants ought reasonably to have anticipated that the injury plaintiff suffered was likely to occur.

In view of what has been determined it seems unnecessary to consider the question of contributory negligence.

Judgment must be entered for defendants.

Counsel will prepare findings of fact, conclusions of law and judgment consistent with this opinion.


author: GOODMAN, District Judge.

text:
    STEELE v. AMERICAN SOUTH AFRICAN LINE.
    No. 24836-G.
    District Court, N. D. California, S. D.
    Sept. 19, 1945.

      Andersen & Resner, of San Francisco, Cal., for plaintiff.
    John H. Black and Edward R. Kay, both of San Francisco, Cal., for defendant.
   GOODMAN, District Judge.

Plaintiff, a junior engineer of The S. SCape Blanco, has moved to remand this cause to the State Court, from whence defendant had previously caused its removal here. The action is one to recover damages for personal injuries claimed to have been caused plaintiff on the Cape Blanco due to the negligence of defendant, whom plaintiff seeks to hold responsible as his employer at the time. The Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688.

Removal of the cause to this court was accomplished on the ground that the claim of the plaintiff that defendant was his employer was colorable, if not fraudulent, and for the purpose of ousting federal jurisdiction. The removal petition asserted that plaintiff fraudulently alleged in his complaint that defendant was his employer in order to maintain the action in the State Court pursuant to the Jones Act, supra. The petition further alleged that in truth and fact, the defendant was not plaintiff’s employer, and that consequently the cause was in reality a simple common-law action-for negligence and therefore, because of diversity of citizenship, of federal cognizance. It was further charged in the petition that the defendant was in fact the agent of the United States, the owner of the vessel. Such being the case, it is asserted, the United States was plaintiff’s employer and his cause, if any, based on. the Jones Act,, must therefore be litigated in this court, as provided in the Suits in Admiralty Act, 46 U.S.GA. § 741 et seq., and Public Law 17, 50 U.S.C.A.Appendix, § 1291.

Several contentions, which require the consideration of the Court, are urged by plaintiff in support of the motion to remand.

It is first urged that, in fact, defendant and not the United States was. plaintiff’s employer. However, by the “Service Agreement” between the defendant and the United States War Shipping Administration, the United States and not defendant was plaintiff’s employer. See my decision in Conlon v. Hammond Shipping, Co., Ltd., D.C., 55 F.Supp. 635; Murray v. American Export Lines, Inc., D.C., 53 F. Supp. 861; Baker v. Moore McCormack Lines, D.C., 57 F.Supp. 207 (decision of Judge Roche).

It is next contended that at the time plaintiff signed on the Cape Blanco, he was unaware that the United States was the vessel’s owner and that defendant held itself out as the vessel’s owner-operator. Consequently it is urged that, on the basis of the well-known principle of the law of agency, i. e. that an agent may be held as a principal when the latter is undisclosed, defendant is suable as if it were in fact the employer. In support of this contention, plaintiff cites a decision of Judge Knox of the United States District Court, S.D. of N.Y., Lewis v. United States Navigation Co., 57 F.Supp. 652. That case, however, is distinguishable in several vital respects. Judge Knox found as a fact that the plaintiff Lewis was hired in the customary way through his maritime union by defendant shipping company and further that he was unaware that defendant, which had signed the shipping articles in its own name as “operating company”, was acting as agent of the United States in servicing the ship and was without any authority over the vessel once she was on her way. Upon that theory, Judge Knox decided that plaintiff had a good cause of action against defendant under the Jones Act.

In the instant case, the Shipping Articles, signed by plaintiff, were executed by defendant as “Gen.Agts.” Also attached to and a part of the Articles were certain regulations “pertaining to all American Flag vessels owned by or under bareboat charter to the War Shipping Administration.” Hence plaintiff cannot here successfully maintain his position that he was in ignorance of the identity of his employer. Moreover, I find myself unable to agree with the theory upon which the learned and experienced judge decided the Lewis case. The Jones Act fixes the rights and liabilities of seamen and their employers with respect to personal injuries suffered by seamen during their employment. It provides for the maintenance of actions by seamen against their employers. Sec. 33, Jones Act, 46 U.S.C.A. § 688. “The statute is concerned with the relative rights and obligations of seamen and their employers arising out of personal injuries sustained by the former in the course of their employment.” Panama R. R. Co. v. Johnson, 264 U.S. 375, 387, 44 S.Ct. 391, 394, 68 L.Ed. 748, 753. I cannot see how a cause of action specifically created by statute can be maintained against any party, other than the party statutorily charged with liability. Unawareness of the identity of the employer, at the time of signing on the vessel, is not, in my opinion, legally sufficient to fasten statutory liability upon a party not made responsible by the terms of the statute. It may be that Judge Knox was satisfied in the Lewis case that the defendant there was in fact the employer, thus fully justifying his decision. It is only the theory set forth as the basis of decision, with which I disagree.

Plaintiff suffers no prejudice nor loss of substantial rights. He may maintain his cause against the United States, his employer, by virtue of Public Law 17, 78th Congress, 50 U.S.C.A.Appendix § 1291, as if he were proceeding under the Jones Act. Pie also has the right to maintain an action against defendant for damages for maritime tort. See Brady v. Roosevelt S. S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471.

It is finally contended that the question in issue is one of fact, which cannot be determined on this motion, but must be litigated as one of the issues triable in the state court. But the issue, upon which removability depends, appears from the record to rest upon undisputed facts and documents and hence may be resolved as a matter of law. At least the court can, on motion to remand, inquire far enough into the factual issue to ascertain whether the requisites of a cause of action under the Jones Act are present. Aldredge v. Baltimore & O. R. Co., 8 Cir., 20 F.2d 655.

The motion to remand is denied.

       28 U.S.C.A. § 41(1) (b).

       The “Service Agreement” wa-s, by stipulation, made a part of the record on the motion to remand.

       Plaintiff responded to a call for seamen sent by defendant to the maritime union of which he was a member.

       See VoL 3, Corpus Juris Secundum, Agency, page 123, § 216.

       Made a part of the record by stipulation.

       It is also contended that the collective bargaining agreement between the Maritime Union and defendant and other ship operators indicates an intent to fix the relationship between plaintiff and defendant as that of employer and employee. However, the claimed effect of this arrangement is greatly weakened if not completely negated by the “Statement of Policy” executed between Maritime Union officials and the United States War Shipping Administration in May 1942, whereby a detailed policy of co-operation between the Unions and the Administration during the war was set up to facilitate the manning and operation of the merchant vessels of the United States Shipping Administration.


author: DAVIS, District Judge.

text:
    KING v. CHAPMAN et al.
    Civ. A. No. 143.
    District Court, M. D. Georgia, Columbus Division.
    Oct. 12, 1945.
    Oscar D. Smith, of Columbus, Ga., and Harry S. Strozier, of Macon, Ga., for plaintiff.
    A. Edward Smith, of Columbus, Ga. and Hall & Bloch, of Macon, Ga. (Chas. J. Bloch and Ellsworth Hall, Jr., both of Macon, Ga., of counsel), for defendants.
   DAVIS, District Judge.

This case arises under Sections 31 and 43 of Title 8 U.S.C.A. and plaintiff seeks damages of the defendants for the alleged deprivation of his civil rights guaranteed to him by the Constitution and laws of the United States; viz., the right to vote in Muscogee County in the Democratic Primary held on July 4, 1944, for the nomination of United States Senator and a member of the House of Representatives, as well as'State officers.

Inasmuch as candidates for the offices of United States Senator and members of the National House of Representatives were nominated at this primary, it is unnecessary to pass on the question of whether or not this action would lie had the primary been one merely for the nomination of state or local officers.

The facts are stipulated by the parties. Such as are material to a consideration and determination of this case are, as follows :

Plaintiff is a member of the negro race, and at the time of the primary election held on July 4, 1944 was a duly qualified and registered voter of Muscogee County, Georgia, and of the State of Georgia, and a resident and citizen of said state and county.

The defendant, J. E. Chapman, Jr., was at the time of said primary election the duly elected Chairman of the Democratic Executive Committee of Muscogee County, Georgia. The other defendants at said time were the remaining members of said committee and were selected thereto by appointment. The defendants at the time of the filing of this suit were residents and citizens of Muscogee County, Georgia.

The Democratic Party in Muscogee County polled more than ten per cent of the entire vote cast in the county in the preceding primary for the candidate receiving the greatest number of votes.

On July 4, 1944, there was held throughout the State of Georgia and in Muscogee County, Georgia, a primary election for the nomination of Democratic candidates for United States Senator, Representatives in the House of Representatives of the United States, and various state officers. Said primary election was held in conformity with the rules and regulations of the State Democratic Executive Committee, adopted January 27, 1944, and under the immediate supervision of the defendants and under the laws of Georgia relating to primary elections.

Defendants, as members of said Democratic Executive Committee of Muscogee County, Georgia, held the election of July 4, 1944, in Muscogee County, Georgia, and in such capacity they appointed the clerks, tabulators and managers therefor and publicized the rules and regulations which governed said election.

On said date of July 4, 1944, during the regular hours of voting, plaintiff presented himself at the Muscogee County courthouse in the City of Columbus, in the precinct in which he was registered, and expressed a desire to vote. Defendant advised plaintiff that, solely on account of his race, he was not qualified to be a member of the Democratic Party of the State of Georgia and was, therefore, not qualified to vote in said primary, by reason of Rule Two of the rules governing said primary as adopted by the State Democratic Executive Committee, and for that reason alone defendants refused to permit plaintiff to vote. Plaintiff was a believer in the tenets of the Democratic Party and was willing to support the Democratic nominees in the ensuing general election.

Since 1900, the Democratic nominees for United States Senator, Representatives in Congress, Governor and other State-House offices nominated at primaries have been elected in the ensuing general election.

All State and County officers upon whom the law devolves any duty or duties in connection with primary elections perform such duties without expense to the Democratic Party or its candidates or nominees.

All of the Democratic candidates nominated in the primary of July 4, 1944 were elected to office in the General Election in November, 1944.

No other party than the Democratic Party has held a state-wide primary in Georgia during the past forty years, though there have been candidates in the general elections other than the Democratic nominees.

The State Democratic Executive Committee acting on July 4, 1944 was selected pursuant to a resolution adopted by the State Democratic Convention held on October 7, 1942.

The delegates. to this Convention were selected in accordance with a party custom, which permitted the candidate for Gov-emor prevailing in a given county to name the delegates to the Convention, each county being permitted by this custom to two votes for each representative to which such county was entitled in the lower House of the General Assembly,

The expense of holding primaries is defrayed by assessment against candidates in such amounts as are determined by the Party authorities.

In all counties of the State, other than Muscogee, the selection of members of the Democratic Executive Committees of the respective counties is governed by the rules of the party.

The defendants, in refusing to permit plaintiff to vote as above stated, were acting in their capacity as members of the Democratic Executive Committee of Muscogee County, Georgia.

Since 1908 the Democratic Party in Georgia has always held a State-wide primary, biennially in the years in which by law a general election is held in November.

The election law known as the Australian Ballot Law, which is codified in the Code of Georgia as Chapter 34-19, has been put into effect in a number of counties in the State and was in effect in Muscogee County on July 4, 1944.

Paragraph 1 of the resolution, adopted by the State Democratic Executive Committee on January 27, 1944, provides: “That a Democratic Primary Election be held on July 4, 1944, in each of the counties of this State for the nomination of candidates of the Democratic Party for the following offices, whether for full or unexpired terms, or both, to-wit: United States Senator, Justices of the Supreme Court, Ju'dge of the Court of Appeals, Representatives in the Congress of the United States from the various' Congressional Districts of the State * * * (and other state offices). * * * The entries for said primary shall close April 1st, 1944 at 12:00 o’clock noon, Central War Time”.

Paragraph 2 of said resolution provides: “The Primary Election shall be conducted in accordance with the laws of this State and the customs of the párty insofar as they do not conflict with existing laws and these rules. All white electors' who are Democrats and qualified to vote in the General Election and who in good faith will pledge themselves to support the Democratic candidates for all offices to be voted on this year, are hereby declared qualified to vote in said primary.”

It was conceded in the arguments that the right of a qualified elector to vote in a Primary for the selection of candidates for United States Senator and members of the' House of Representatives to be voted on in the General Election, when such primary is an integral part, by law or in fact of the electoral process of the state, is a right secured by the Constitution and laws of the United States.

It was also conceded that the deprivation of such right, to be the basis of a cause of action under Title 8 U.S.C.A. Section 43, must be by state action.

That brings us then to this question: When a political party in Georgia determines to hold and does hold a primary for the selection of candidates for United States Senator and members of the House of Representatives, is such primary an integral part of the election system of the state, by law or in fact; and, if so, is it action by the State? In order to determine these matters, it is necessary to look to the Constitution and statutes of the State of Georgia and to the stipulations of fact.

The Constitution of 1877, which was of force at the time this cause arose, recognizes primaries in section 2-608, Const, art. 2, § 1, par. 8, providing: “No person shall be allowed to participate in a primary of any political party or a convention of any political party in this State who is not a qualified voter.”

It might be noted here that a new constitution was ratified on August 7, 1945, wherein no mention is made of primaries.' Title 34 of the Georgia Code of 1933 embraces all of the statutes touching elections. Sections 34-101 through 34-115 provide for the registration of voters, the duties imposed upon the Tax Collectors with reference thereto, and the form of oath required to qualify an elector.

§ 34-111 requires that the race of the registrant be noted on the voters' book.

§ 34-201 requires the tax collectors of the several counties to make registration lists of qualified electors; and § 34-202 provides that such lists shall be filed with the county registrar. § 34-203 provides that the tax collector, the ordinary and the clerk of the superior court shall prepare a list of disqualified voters, and § 34-204 the method to be used. § 34-301 provides for the appointment of three registrars in each county by the judge of the superior court, and their appointment entered on the minutes of the court. § 34-303 prescribes the oath they shall take.

Sections 34-401 to 34-404, inclusive, prescribe their duties. § 34-405 provides: “Each person whose name is upon the registration list for the general election provided for in the foregoing section shall be entitled to vote at the general State election for said year and all primaries to nominate candidates for offices to be filled at said general State election and also at the Federal election in November of said year * *

§ 34-406 provides for supplemental list for persons whose names are not on the registration list, referred to in § 34-405, and who desire “to vote at any election or primary subsequent to the general State election, whether in the said year or the succeeding year * * *

§ 34-701 requires the county registrars on the day of the election to furnish the managers of the election at each voting precinct in the county copy of the list of registered voters for such precinct.

§ 34-901 requires the managers of elections of the different precincts to return the lists of registered voters to the clerk of the superior court, that he shall keep the lists open for public inspection and present them to the foreman of the next grand jury for such action as may be deemed proper by it.

§ 34-1001 prescribes the compensation to be paid to the tax collector, ordinary and clerk of the superior court and the registrars for their services in preparation of registration lists, and provides for payment out of the county treasury.

§§ 34-1201 to 34-1203 provide for election managers, the form of oath to be taken by them, and the proper person to administer it. § 34-1302 fixes the general election date on Tuesday after the first Monday in November, in the even-numbered years.

Sections 34-1901 to 34-1913, both inclusive, provide for the Australian Ballot System (which was operative in Muscogee County on July 4, 1944). § 34-1903 requires that in all primary elections, it is the duty of the county executive committee, or other party authority of the political party holding the election, to provide official ballots, with the names of all candidates, who are properly qualified in accordance with the rules of the party, printed thereon, and prescribes other requirements as to the ballot. § 34-1911 prescribes a fee of $3 to the ordinary, to be paid out of the county treasury for making the arrangements and performing his duties required in the election under the Australian Ballot System.

§ 34-2001 requires candidates for United States Senator, Governor and other state officers, within 20 days from the date of holding the election or primary election at which they shall be candidates, to file with the Comptroller General an itemized statement, under oath, of all campaign expenses incurred by them, and likewise, candidates for Congress, within 20 days after the holding of the election or primary election at which they shall be candidates, to file with the clerk of the superior court of each of the several counties composing the congressional district, an itemized statement under oath of all campaign expenses incurred by them. § 34-2002 provides, “No person viplating the provisions of the preceding section shall be declared the nominee of his party.”

We come now to consider the Georgia statutes dealing directly with primary elections. They are embraced in sections 34-3201 to 34-3218, both inclusive. The first sentence in § 34-3201 provides: “Every political primary election held by any political party, organization, or association, for the purpose of choosing or selecting candidates for office, or the election of delegates to conventions in this State, shall be presided over and conducted in the manner .and form prescribed by the rules of the political party, organization, or association holding such primary elections, by managers selected in the manner prescribed by such rules.”

The section then requires that the managers shall, before entering upon the discharge of their duties, each take and subscribe an oath and prescribes the form of oath and before whom it shall be taken; if the proper officer is not present, then the managers may administer the oath to each other. This required oath is then to be filed in the office of the clerk of the Superior Court of the county in which the primary election is held within five days after the election.

§ 34-3202 describes in detail the duties imnosed upon the managers of such primary elections, as follows:

(1) “Before any ballots are received at such primary elections, and immediately before opening the polls, the managers shall open each ballot box to be used in the election, and shall exhibit the same publicly, to show that there are no ballots in the box.

(2) “They shall then close and lock or seal the box, except the opening to receive the ballots, and shall not again open the same Until the close of the election.

(3) “They shall keep a list of voters voting at the election, and shall, before receiving any ballot, administer to the voter an oath, provided the voter’s vote is challenged, that he is duly qualified to vote according to the rules of the party, and according to the election laws of this State, and that he has not voted before in such primary election then being held.

(4) “At the close of the election the managers shall proceed publicly to count the votes and declare the result.

(5) “They shall certify the result of the election, and transmit the certificate with the tally sheet or poll list, together with the ballots cast, and all other papers relating to such primary election, within the time and in the manner prescribed in this Chapter.”

Section 34-3203 provides: “Whenever any political party shall hold primary elections for nomination of candidates for office, such party or its authorities shall cause all candidates for nominations for Governor, Statehouse Officers, members of Congress, United States Senators (and other state officers) to be voted for on one and the same day throughout the State at such date as may be fixed by the State executive committee of such party, except where a second primary shall have been called by the authorities of said party for any particular office on some subsequent day, through failure to make, for any cause, a valid nomination at the first primary, or in consequence of a contest: Provided, that said executive committee shall not fix the date for the said general primary earlier than 60 days before the date of the general State election in November: Provided further, that this section shall not have the effect of requiring a primary for judges and solicitors except in their respective circuits, or for members of the General Assembly except in their respective counties, or for State senators except in their counties, as the authorities of said party may authorize or direct.”

§ 34-3204 provides where the elector shall cast his ballot.

§ 34-320S provides that “No person who has not first taken the oath prescribed by law for managers of primary elections shall act as manager, clerk, or assistant, or in any way take part in receiving, counting, or consolidating the votes or results in any such primary election, and no manager of any primary election shall permit any person who has not first taken the oath now prescribed by law for the managers of primary elections, to act as assistant or clerk or in any way take part in receiving, counting, or consolidating the votes or results in any such primary election.”

§ 34-3206 prohibits any manager of a primary election from receiving the ballot of any elector until he has first ascertained that such elector is a duly qualified registered voter.

§ 34-3207 prescribes in detail how the returns shall be made:

(1) “The returns of the managers, with the tally sheets, lists of voters, and ballots, together with all papers connected with said election, shall be filed in the office of the clerk of the superior court of the county in which said election shall be held, within four days after the final declaration of the result thereof.

(2) “One of the lists of the voters and one of the registration lists with names of those checked or marked as voters shall be exhibited by said clerk to anyone desiring to inspect same, but the other documents deposited as aforesaid shall be kept unopened and under seal until the next meeting of the grand jury, to which grand jury one registration list, one list of voters, and the checked registration list above mentioned shall be exhibited; and if no action shall be taken thereon by the grand jury and no contest shall have been filed within the time prescribed by the authorities of said party, all of said election papers shall be destroyed.”

§ 34-3208 requires that “persons author-* ized by the rules of the party * * * to hold' such primary election shall provide an official ballot whereon shall be printed all the names of the candidates for the various offices * * *.”

§ 34-3209 is a delegation of power by the State to the party authorities, as follows: “The party authorities shall, in all matters not provided for in this Chapter, formulate rules and regulations for holding said primary election and for making returns thereof to the proper party authorities.”

§ 34-3210 provides: “Every such primary election shall be held at the time and place, and under the regulations prescribed by the rules of the party, organization, or association holding the same, and the return shall be made and the result declared as prescribed in this Chapter.”

§ 34-3211 provides for contests and makes it the duty of the clerk of the superior court to deliver any questioned ballots, together with all the papers connected with the primary election, to the person who shall preside at the taking of the testimony in such contest.

We come now to Section 34-3212, which is perhaps unique in the electoral systems of this country, and which establishes what is known as the county unit vote system for candidates for certain offices, and provides as follows:

“34-3212. County unit vote. — Whenever any political party shall hold primary elections for nomination of candidates for United States Senator, Governor, Statehouse officers, Justices of the Supreme Court, and Judges of the Court of Appeals, such party or its authorities shall cause all candidates for nominations for said offices to be voted for on one and the same day throughout the State, which is hereby fixed as the second Wednesday in September of each year in which there is a regular general election. Candidates for nominations to the above-named offices who receive, respectively, the highest number of popular votes in any given county shall be considered to have carried such county, and shall be entitled to the full vote of such county on the county unit basis, that is to say, two votes for each representative to which such county is entitled in the lower House of the General Assembly. If in any county any two or more candidates shall tie for the highest number of popular votes received, the county unit vote of such county shall be equally divided between the candidates so tying. All such county unit votes shall within 10 days after such primary be accurately consolidated by the chairman. and secretary of the State committee of the political party holding such-primary, and published in a newspáper published at the capital, within three days after the completion of the consolidation, certified under the hands and seals of said chairman and secretary; and the candidates for said offices, respectively, who shall receive a majority of all the county unit votes, throughout the entire state, upon the basis above set forth, shall be declared by the State convention of the party holding such primary, or the permanent chairman thereof, or other party authority, without the necessity of a formal ballot, to be the nominees of such party for the above-named offices, fespec-tively, and it shall be the duty of the State executive committee elected or appointed at such convention, or by its authority, or the chairman or secretary thereof, or other authority of such party, to see to it that the names of all such successful candidates shall be placed upon the tickets or ballots of such party at the general election following such primary, and such successful candidates shall be considered, deemed and held as the duly nominated candidates of such party for the offices named: Provided, that in the event there are only two candidates for any particular office referred to in this section, and it shall appear, after the consolidation of all of the county unit votes throughout the State, that said candidates have received an equal number of county unit votes, the one who shall have received a majority of the popular votes shall be declared by the State convention of the party holding such primary, or the permanent chairman thereof, or other party authority, without the necessity of a formal ballot, to be the nominee of such party for such office; and it shall be the duty of the State executive committee elected or appointed at such convention, or by its authority, or the chairman or secretary thereof, or other authority of such party, to see to it that the name of such successful candidate shall be placed upon the tickets or ballots of such party at the general election following such primary, and such successful candidate shall be considered, deemed and held as the duly nominated candidate of such party for the office named: Provided, further, that if no convention of such party shall be called or held, the declaration of the result shall be made in such manner as may be prescribed by the State committee or other authority of such party. (Acts 1917, pp. 183, 184.)”

Section 34-3213 makes provision for a second primary in the event no candidate for United States Senator or Governor receives a majority of the county unit votes throughout the state in the first primary, and the different steps are set forth in said section.

§ 34-3214 provides, “In each regular election year in which a second primary shall be necessary, by reason of a failure of a candidate or candidates to receive a majority of the county unit votes at the first primary election, such party or its authority shall not hold its convention until after the expiration of 15 days from the date of such second primary election.”

§ 34-3215 provides for special primary elections to fill vacancies.

§ 34-3216 provides that the expense of holding primary elections shall be paid by the political party which causes the same to be held.

§ 34-3217 provides, “Nothing in this law shall be construed to provide or require any definite unit of election for candidates for nominations for members of Congress, judges of the superior courts, solicitors general, members of the General Assembly and county officers; and this law shall not be construed to require a primary for any of the last-named officials, except in their respective districts, circuits or counties, as provided by law.”

The section further provides that “primaries for nomination of members of Congress, judges of the superior courts, solicitors general and members of the General Assembly shall be held on the” same date for primaries for United States Senator, Governor and other State-house officers.

§ 34-3218 is an over-all section and provides : “All the laws in reference to the qualification of voters and their registration shall apply to said elections, and no person who is not a duly qualified and registered voter according to law and who is not also duly qualified in accordance with the rules and regulations of the party holding the same, shall be entitled to vote at any such primary election.”

§ 34-3301 to § 34-3315, both inclusive, deal with absentee voting or voting by mail and all these provisions are applicable to primary elections.

§ 34-2003 (Acts 1943, p. 441) provides that, “No candidate for nomination to any office in any primary held in this State * *. * shall expend, or agree to expend, more than $25,000 in his campaign for nomination * *

§ 34-2001a (Acts 1943, pp. 480, 481) provides that “the hours for holding all general, special, and primary elections in the State of Georgia, shall be from seven o’clock A. M. to six o’clock P. M., according to the legal time prevailing in the State of Georgia, at all of the polling places where said elections are held. The provisions of this section shall not apply to municipal elections.”

§ 34-3215a (Acts 1943, p. 347) provides that, “Immediately after the consolidation of the votes in any such primary election a certificate, showing the names of such candidates and the offices for which they are candidates, shall be filed in the office of the Secretary of State of this State; such certificate to be signed by the chairman and secretary of the State committee of the political party holding such primary.”

It also requires the certificate to show, by counties, the total number of popular votes and the county unit votes received by each candidate in any such primary election.

Sections 34-3223 to 34-3236 are codified from the Acts of 1941 (pages 432 to 438).

§ 34 — 3223 provides, “The legislative in- ' ent and purpose of this law is to effectuate fair and honest primary elections for the nomination of candidates for public office in this State.”

§ 34-3224 provides, “The provisions of this law shall apply to all primary elections hereafter held in this State by any political party for the purpose of nominating candidates for Governor (and other Statehouse officers), and all such primary elections hereafter held for the nomination of any candidate for any State, county, district or national office required to be filled by election by the people of this State or any part thereof, whether such primary election be held tb nominate candidates for unexpired terms or full terms.”

§ 34-3225 provides that, “Any defeated candidate in any such primary election who received thirty-three and one-third per cent, of the total vote cast in any county for the particular office for which he was a candidate, as determined by the result of the first count or canvass of the votes cast at any such primary election, or any defeated candidate for a State, national or district office, who may not have received such thirty-three and one-third per cent, of the total vote cast in the county or the district but who received one-third as many votes as the leading candidate but who may bona fide contend that a recount of the ballots in any county will change the announced result of the primary election in the State or district wherein he was a candidate for such nomination, shall have the right to demand of the county executive committee of any such county or other authority conducting such primary election, a recount of the ballots cast in such election for the particular office for which he was a candidate. Such demand shall be filed with the chairman of the county ' executive committee within 48 hours after the announcement of the result of such primary election by the county executive committee, if such defeated candidate is a resident of the county wherein the recount is demanded, and if a nonresident of the county, within 96 hours after the announcement of such result. The demand shall be in writing and signed by such candidate if he is a resident of the county and by some one by him thereunto lawfully authorized if he is not a resident of the county. Any such candidate who is a nonresident of the county where a recount of the ballots is demanded shall have a right to designate a representative in any such county to enter such demand on his behalf. Such demand shall state the total number of ballots cast for the particular office for which such candidate was a candidate and the number of ballots cast for such defeated candidate according to the declared result, and that such defeated candidate bona fide believes that a recount of the ballots would change the announced result of the election in such county.”

§ 34-3226 provides that when such demand for recount is filed, it is the duty of the executive committee of the county or the chairman thereof to grant the recount and to notify all candidates voted for at the primary of the demand for the recount and to fix a time and place for conducting a recount, providing 48 hours’ notice to all candidates.

§ 34-3227 provides that the successful candidate and the contesting candidate shall each select a representative to act as a member of the committee to conduct the recount of the ballots and “the judge of the superior court of the judicial circuit adj oining that in which such county is located shall be the third member of the committee to conduct such recount.”

§ 34-3228 provides what shall be done in the recount and the committee constituted to conduct the recount is given authority to subpoena witnesses and the records, and requires that the subpoenas for the same be furnished by the sheriff of the county. The committee has the right to hear witnesses, administer oaths to witnesses, and to certify to the judge of the superior court of the circuit in which the recount is conducted for punishment for contempt any witness who has failed to appear at such proceeding for the recount of said ballots, or for refusal of a witness to testify, or any other misbehavior or other unlawful conduct at such proceeding. This section further provides that the judge of the superior court shall punish any such party so certified as for contempt of court.

§ 34-3229 sets forth the power of the committee in conducting the recount.

§ 34-3230 provides for the production of tally sheets, registration lists, ballots cast and other records of the primary elections for the use of the committee.

§ 34-3231 provides for the inspection of records, and § 34-3232 for the postponement or continuance of the recount, in the discretion of the committee. § 34-3233 provides that the majority of the committee shall constitute a quorum, and the superior court judge serving as chairman of the committee and presiding at the meeting.

§ 34-3234 provides for the report of the committee within 24 hours after the recount of the ballots and the public announcement of the result, reducing the same to writing and filing a report thereof with the executive committee, and with the chairman of the State executive committee; and providing further that the report and findings of such committee on such recount shall be final.

§ 34-3236 provides that, “In the event the executive committee of said county or other authority conducting and holding said primary election should fail or refuse to adopt * * * the report and findings of such committee conducting said recount of the ballots * * *, ' then the candidate for office whose rights may be affected by the failure or refusal of such executive committee or other authority to abide by such report of such committee shall have the right to proceed by mandamus or appropriate legal or equitable remedy in the courts of this State to enforce the report and findings of such committee conducting the recount of the ballots as herein provided. Jurisdiction to hear and determine such cause is hereby conferred upon the superior courts of the State, notwithstanding the political nature of any such controversy.”

In addition to all of the foregoing, by Act of the Legislature, approved January 7, 1944, Laws 1944, Ex.Sess., p. 2 (not yet codified), the primary and election laws of Georgia were implemented. Section 1 declares, “The purpose of this Act is to make provision for Georgia men and women in the military service of the United States to participate in County, State, and National Elections, and in Party Primaries in liberalizing the statutes of this State and by making provision for such participation.”

Section 3 provides, “The State Selective Service, all military organizations, and citizens of this State are charged with the duty of cooperating with election and party officials in carrying out the purpose of this Act.”

Section 5 provides, “The Tax Collectors or Tax Commissioners of the several counties shall provide for the military a registration card, in .form as follows” (Form set out) * * *

The section further provides, “Any member of the military, his relative or friend, is authorized at any time to request from the Tax Collector or Commissioner the aforesaid registration card and in making said request shall furnish the name and' address of the military member, and upon receipt of such request it shall be the duty of the Tax Collector or Commissioner to send the same to the member of the military; and the Tax Collector or Commissioner shall number the said registration forms and shall keep a permanent record book in his office in which he shall record the number of the card, the name of the member of the military for whom the registration card is sought, the name and relation, if any, of the person requesting the card, and the date the card is furnished, and such other information necessary to identify said registrant * * *. The member of the military receiving and executing the aforesaid registration card shall place the same in an envelope addressed to the Tax Collector or Commissioner of his County, and mail the same. * * * When such registration is completed, signed and returned to the Tax Collector or Tax Commissioner of the County it shall by him be placed in a suitable permanent record book and form a part of the voters’ registration list. Upon receipt by the Tax Collector or Commissioner of the said registration, the name of the member of the military so registering shall be placed upon the registration list as an elector and registered voter, and shall be certified as such by the Registrars; provided, however, the said member' of the military is otherwise qualified.”

Section 8, paragraph 2, provides that, “Whenever any political party shall hold primary elections for nomination of candidates for office for Governor, State House Officers, Members of Congress, United States Senators (and other state offices), which are by law voted on one and the same day throughout the State, said primary may be held on such date as may be fixed by the State Executive Committee of such party, and the State Executive Committee is authorized to fix such time for the said primary, second primary, or party convention as it may determine without respect to the time now provided by law as the date on which the said primary, second primary, or convention shall be held.”

Section 13 provides, in part, as follows: “It shall be the duty of the County Registrars in any primary election held by any political party for the nomination of candidates for the office for Governor, State House Officers, Members of Congress, United States Senators (and other state offices), to furnish to any member of the military who is a registered and qualified voter, and who is a member of the political party holding the said primary a ballot for the use of the military voter who is a member of the said political party in casting his vote in the said primary election.”

Section 16 provides: “It shall be the duty of the Ordinary in case of general elections, and the duty of the County Registrars in case of primary elections, to receive all ballots from members of the military up to and including the election hours of the day of the election and to keep the said military ballots in a safe and private place unopened until the day of the election. Upon receipt of the ballot by the Ordinary or the County Registrars, as the case may be, the said official shall write the date of the receipt of the said military ballot on the envelope containing same. On the day of the election such official shall, in the presence of the election managers, open the envelope containing the military ballot, determine the name of the voter casting the same and record the receipt of his said ballot, and the date received, in the permanent record book maintained by the said official for such purpose. The election managers shall then determine from the list of registered and qualified voters the eligibility of the military voter in question to cast the said ballot and, if found properly registered and qualified, the Ordinary or the County Registrars, as the case may be, shall deposit the ballot in the regular ballot box with the approval of the election managers.”

Section 17 provides: “It shall be the duty of the Board of Registrars to make and file with the election managers of the precinct in which the court house of the county is located a full and complete list of registered and qualified voters for the entire county.”

Section 18 provides: “There is hereby created a State War Ballot Commission composed of the Governor, the President of the Senate, the Speaker of the House, the Attorney General, and the Secretary of State, which said Commission is authorized and empowered to make any and all provisions and regulations necessary to effectuate the operation of this Act and to cooperate with federal authorities in facilitating and expediting the handling of registration and balloting by military voters. The said War Ballot Commission is also directed to cooperate with State, County and political party officials in all matters relating to the registration and voting of members of the military in elections and party primaries. The said Commission is also empowered and authorized to settle and determine all questions of law, procedure and regulation governing the registration and voting of persons in the military.”

Section 20 provides: “All expense in connection with the mailing of registration cards and ballots to members of the military as provided in this Act shall be borne by the counties.”

Section 21 provides: “The terms and provisions of this Act shall expire and become extinguished upon the convening of the General Assembly in regular session next after the termination of the present war.”

It should be noted here that the provisions of this Act were of full force and effect on July 4, 1944.

In addition to all of the foregoing statutes touching primary elections, it is well to note that the State of Georgia applies criminal sanctions on violations of its election laws. Those that relate specifically to primary elections are as follows:

“§ 34-9922. Any manager of a primary election, who shall be guilty of wilfully violating any of the duties and obligations devolving upon him as such manager, shall be punished as for a misdemeanor.”
“§ 34-9923. Any manager of a primary election or clerk of the superior court, who shall violate the provisions of sections 34-3204 to 34-3209 or 34-3211, relating to primary elections, shall be guilty of a misdemeanor.”
“§ 34-9924. Any manager of a primary election, who shall be guilty of fraud or corruption in the management of an election, shall be punished as for a misdemeanor.”
“§ 34-9925. Any voter at a primary election, who shall, if challenged, swear falsely in taking the prescribed oath, or shall per-sonate another and take the oath in his name in order to vote, shall be guilty of perjury, and shall be punished as for perjury.”
“§ 34-9926. Any person who shall either buy or sell, or offer to buy or sell, or be in any way concerned in buying or selling, or contribute money for the purpose of buying a vote in any primary election, whether the election shall be for nominees for State, county, municipal, or Federal office, shall be guilty of a misdemeanor.”
“§ 34-9928. Any person who shall vote at a primary election more than once or at more than one polling place, shall be guilty of a misdemeanor.”
“§ 34-9929. Any person attempting to aid or abet fraud in connection with any vote cast, or to be cast, or attempted to be cast, under the provisions of Chapter 34-33, regulating Voting by mail, shall be guilty of a misdemeanor.”

§ 34-9933, codified from the Acts of 1939, page 309, provides: “All penal laws of the State of Georgia relating to illegal practices in general elections are hereby extended to all primary elections held for State, county, or municipal offices in the State of Georgia.”

§ 34-9934 provides: “Any person who at any primary election or election of any kind, by ballot, within this State, shall sign the voters identification book, for the purpose of fraudulently obtaining a ballot, representing himself or herself to be a different person and representing that he or she is the person whose name he or she signs, whether said person so impersonated be living, deceased or a fictitious person, shall be guilty of forgery and punished as for a misdemeanor.” (Acts 1941, pp. 429, 431.)

In United States v. Classic et al. (Louisiana), 313 U.S. 299, 61 S.Ct. 1031, 85 L. Ed. 1368, and Smith v. Allwright (Texas), 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110, the Supreme Court reviewed and passed upon the primary election systems of Louisiana and Texas.

In the Classic case it was said (page 318 of 313 U.S., page 1039 of 61 S.Ct., 85 L.Ed. 1368) : “Where the state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary is likewise included in the right protected by Article I, § 2 (of the Constitution). And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative.”

In the Allwright case, speaking of the Texas system, it was said (page 663 of 321 U.S., page 765 of 64 S.Ct., 88 L.Ed. 987, 151 A.L.R. 1110): “We think that this statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the state in so far as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by a political party. The plan of the Texas primary follows substantially that of Louisiana, with the exception that in Louisiana the state pays the cost of the primary while Texas assesses, the cost against candidates.”

Speaking further of primaries generally, the court said (page 664 of 321 U.S., page 765 of 64 S.Ct., 88 L.Ed. 987, 151 A.L.R, 1110):

“When primaries become a part of the machinery for choosing officials, state and national, as they have here, the same tests to determine the character of discrimination or abridgement should be applied to the primary as are applied to the general election. If the state requires a certain electoral procedure, prescribes a general election ballot made up of party nominees so chosen and limits the choice of the electorate in general elections for state offices, practically speaking, to those whose names appear on such a ballot, it endorses, adopts and enforces the discrimination against Negroes, practiced by a party entrusted by Texas law with the determination of the qualifications of participants in the primary. This is state action within the meaning of the Fifteenth Amendment. Guinn v. United States, 238 U.S. 347, 362, 35 S.Ct. 926, 930, 59 L.Ed. 1340, L.R.A.1916A, 1124.
“The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race. This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281.
“The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, 295 U.S. 45, 55, 55 S.Ct. 622, 626, 79 L.Ed. 1292, 97 A.L.R. 680, no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.”

It is true that the statutes of Louisiana and Texas require the holding of a primary, while there is no such statutory requirement in Georgia. However, a fair consideration of the foregoing Georgia statutes leads to the conclusion that whenever a political party holds a primary in this state, it is by law an integral part of the election machinery. Once a decision to hold a primary is made, the státutes of Georgia take hold and direct every essential step from registration and qualification of voters to the placing of the names of the nominees on the general election ballot. The state by statutes invests the party authorities with the power to formulate rules and regulations for holding the primary, and thus empowers the party to provide by regulation and rules for details which are not specifically covered by statutes. (§ 34-3209; Section 18, Act of January 7, 1944.) It was under this statutory authority that the Democratic Executive Committee on January 27, 1944 determined to hold a primary, fixed the date of July 4, 1944, and prescribed regulations and limited the participant voters to white qualified electors. This is an adoption by the state of party action and such action is state action.

The Democratic Party is the dominant and controlling political party in Georgia, No other party has held a statewide primary during the past 40 years. Since 1900 Democratic nominees for United States Senator, members of the House of Representatives, Governor, and other Statehouse officers, nominated at primaries, have been elected in the ensuing general election. The nominees at the 1944 Primary were so elected.

So, we conclude from this long established practice that the primary is in fact an integral part of the electoral process of this state. ' It may fairly be said that it is the hub of the process. When the Democratic Party holds a primary in this state, the system is substantially the same, in substance and objective, as the Texas and Louisiana systems.

As I understand the holding and the meaning of Smith v. Allwright, it is controlling here.

The defendánts acting as the duly constituted authorities of the Democratic Party, in refusing to permit plaintiff to vote in the Primary of July 4, 1944, solely on account of his race and color, deprived the plaintiff of a right secured to him by the Constitution and laws of the United States, and was in violation of the Fourteenth, Fifteenth and Seventeenth Amendments.

Plaintiff has a cause of action and is entitled to recover. Appropriate orders will be entered.

After a full consideration of the facts, as stipulated by the parties, arguments and briefs of counsel, the court makes the following findings of fact, conclusions of law, and judgment in the above case.

Findings of Fact

The facts are found to be as stipulated by the parties.

Conclusions of Law

1. The court has jurisdiction of the parties and the subject matter in this cause.

2. The holding of the Democratic Primary election in Muscogee County and the State of Georgia on July 4, 1944, for the nomination of a candidate for United States Senator and members of the House of Representatives, to be voted on in the general election in said year, was by law an integral part of the electoral process of the State of Georgia.

3. The holding of said primary was action by the State of Georgia, acting through the Democratic Party as its instrumentality.

4. Plaintiff’s right to vote in said primary election is a right secured to him by the Constitution and laws of the United States.

Defendants, acting as the duly constituted authorities of the Democratic Party, in refusing to permit plaintiff to vote in said primary election solely on account of his race' and color, deprived the plaintiff of a right secured to him by the Constitution and laws of the United States, and was in violation of the Fourteenth, Fifteenth and Seventeenth Amendments.

6. Plaintiff has a cause of action and is entitled to recover of the defendants damages in the amount stipulated by the parties.

Judgment

Whereupon, it is considered, ordered and adjudged that the plaintiff do have and recover of the defendants the sum of $100, as stipulated by the parties, together with future interest thereon at the rate of 7 per cent, per annum, and the costs of this proceeding to be taxed by the clerk.

       “8 U.S.G.A. § 31. Race, color, or previous condition not to affect right to vote.
      “All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding. R.S. § 2004.
      “8 U.S.C.A. § 43. Civil action for deprivation of rights.
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other 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 ac-

        tion at law, suit in equity, or other proper proceeding for redress. R.S. § 1979.”

       “Convention Resolution No. 10:
      “Be it resolved by the State Democratic Convention duly assembled in session in Macon, Georgia, on this October 7, 1942, as follows:
      “1. That a State Democratic Executive Committee be selected to serve until the Regular State Democratic Convention in 1946; said Committee to be composed of the officers thereof as hereinafter provided and six members from each Congressional District of the State to be selected by this Convention; and sixty members from the State at large, to be appointed by the Chairman of said Committee.
      “2. That the Permanent Chairman, the Executive Vice-Chairman, the second Vice-Chairman, the third Vice-Chairman, the Secretary, the assistant Secretary and the Treasurer of this Convention be and they are hereby named as the Chairman, the Executive Vice-Chairman, the second Vice-

        Chairman, the third Vice-Chairman, the Secretary, the assistant Secretary and the Treasurer of said Democratic Executive Committee. The temporary Chairman of this Convention is hereby elected and designated as the third Vice-Chairman,
      “3. Any vacancy in any office or membership on the State Democratic Executive Committee shall be filled by appointment of the Chairman and in the event of a vacancy in the office of Chairman, the Executive Vice-Chairman shall become the Chairman of the Committee.
      “4. The State Democratic Executive Committee is hereby clothed with complete authority and jurisdiction over all Democratic Party matters in as full and complete manner as the State Democratic Convention or Party.”


author: WELSH, District Judge.

text:
    In re GLENN-COLUSA IRR. DIST.
    No. 10515.
    District Court, N. D. California, N. D.
    Sept. 26, 1945.
    Brobeck, Phleger & Harrison, of San Francisco, Cal., for movant, Frank Kennedy.
    J. J. Hankins, of Meridian, Cal., A. L. Cowell, of Stockton, Cal., and Wright Cal-lender, of Willows, Cal., for debtor.
    W. Coburn Cook, of Turlock, Cal., for Pueblo Trading Co., N. O. Bowman, H. A. Shaw, and others objecting creditors.
   WELSH, District Judge.

Glenn-Colusa Irrigation District filed a petition under Chapter 9, Sections 81 to 84 of the Bankruptcy Act, 11 U.S.C.A. §§ 401-404. Three bonds of the debtor corporation of the face value of $1,000 each were owned and held by Frank Kennedy, moving party herein, who filed proof of a claim for $3,000, with interest, on the 19th day of February, 1944.

An interlocutory decree was entered confirming a plan of composition on the 6th day of June, 1944. Said interlocutory decree named the First National Bank of Willows, California, as disbursing agent; required the Irrigation District to deposit with the disbursing agent the sum of $207,-721.52 from which to pay the claims theretofore approved by this Court; and provided “the approved claims shall be paid only upon the surrender to the disbursing agent of the securities on which the respective claims are based, except in the case of the claims based on the bonds and warrants adjudged to have been lost, which shall be paid as hereinafter provided, and except coupons of bonds registered as provided in Paragraph 3 hereof.

“5. That if any of the bonds or interest coupons or valid warrants of the former Williams Irrigation District are not surrendered to the disbursing agent within thirty (30) days after the expiration of the extended time fixed herein for the filing of claims, except the bonds,' coupons and warrants adjudged to have been lost and the coupons of bonds registered as above provided, the proportionate sum to which the holder thereof may be entitled under the plan of composition and the terms of this decree shall be held by the disbursing agent and form a portion of the funds for final distribution to the creditors who have complied with this Decree.”

No notice of the entry of said interlocutory decree was received by said Frank Kennedy or his attorneys. No appeal was taken from said interlocutory decree and the time within which such appeal might have been taken expired 40 days after the entry of said decree. Sec. 25, sub. a, Bankruptcy Act, 11 U.S.C.A., § 48, sub. a.

Said Frank Kennedy filed a notice of motion herein on the 22d day of May, 1945, together with affidavits showing that the first notice or knowledge of the interlocutory decree obtained by his attorney was received pursuant to a long distance telephone conversation with the clerk of this court on the 11th day of May, 1945. Said Kennedy was taken ill shortly after the entry of said interlocutory decree and subsequent thereto was out of the jurisdiction of this court at a clinic in the State of Massachusetts until November 29, 1944.

Certificates filed by his physicians show that he was unable to attend to his business affairs during that time.

The files in this matter show that the address of the movant’s attorneys appeared at the top of the proof of claim filed on his behalf, and that such claim also disclosed his address as 111 Sutter Street, San Francisco, California.

Section 2 of the Bankruptcy Act vests District Courts “with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings, in vacation, in chambers and during their respective terms * * 11 U.S.C.A. § 11,

Said section further provides that said courts may “(15) make such orders * * in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this Title; * *. Nothing in this section contained shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not herein enumerated.”

These provisions give this Court ample authority to grant the present motion. Do the circumstances justify the exercise of discretion favorably to said motion?

Equitable considerations in bankruptcy matters so indicate. In Wright v. Board of Public Instruction, 5 Cir., 142 F.2d 577, 579, the opinion was expressed that a bankruptcy court has jurisdiction “in its discretion, if justice and equity so require” to reconsider the disallowance of a proof of claim. If it can do that, it is equally reasonable to allow a claimant whose claim has already been allowed to turn in his bonds to share pro rata with other bondholders, e-veri though such turning in may be done later than the others.

In Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. 557, the Supreme Court said that a District Court in bankruptcy matters applies the doctrines of equity, and is not limited to any terms of court in granting a rehearing, vacating, altering, or amending its decree, even after an appeal has been perfected and after the time for appeal has expired.

In would be unconscionable to deny the motion. Equity dqes not favor anything which amounts to a forfeiture. In re Detroit Macaroni Co., D.C., 46 F.Supp. 284, 286.

“A court of bankruptcy is a court of equity, and possessing jurisdiction of the cause, the court below must dispose harmoniously and justly of the assets of the bankrupt.” In re Pennsylvania Central Brewing Co., 3 Cir., 135 F.2d 60, 64.

“In the exercise of its equitable jurisdiction the bankruptcy court has the power to sift the circumstances surrounding any claim to see that injustice or unfairness is not done in administration of the bankrupt estate.” Pepper v. Litton, 308 U.S. 295, 307, 60 S.Ct. 238, 246, 84 L. Ed. 281.

“It is well established that a court of bankruptcy, in a strict sense, is a court of equity, the estate being a trust in the possession of persons completely under the control of the court in so far as they deal with the property subject to its jurisdiction.” Donald v. San Antonio Joint Stock Land Bank, 5 Cir., 100 F.2d 312, 314 (quoted with approval in Re Loose, D.C., 52 F.Supp. 20, at page 22).

Furthermore, a party who has appeared in a legal proceeding should be entitled to actual notice, rather than constructive notice or notice by publication. Published notice is at best but a poor substitute for notice by personal service or by mail.

The California Statutes make provision for notice such as: “Notices must be in writing * * * may be served upon the party or attorney in the manner prescribed in this chapter, when not otherwise provided by this code.” Code of Civil Procedure, Sec. 1010. “The service may be personal, by delivery to the party or attorney on whom the service is required to be made * * Code of Civil Procedure, Sec. 1011. “Service by mail may be made where the person on whom it is to be made resides or has his office at a place where there is a delivery service by mail * Code of Civil Procedure, Sec. 1012.

“All pleadings subsequent to the complaint, must be filed with the clerk or justice, and copies thereof served upon the adverse party or his attorney * * Code of Civil Procedure, Sec. 465.

The Court believes that, even in the absence of such statutory enactments, similar notice should have been given movant herein before his property rights in the bonds could be divested.

Importance of notice has been emphasized by the Supreme Court of California. In Texas Co. v. Bank of America, 5 Cal. 2d 35, 43, 53 P.2d 127, 132, it said: “A total lack of jurisdiction due to absence of notice sufficient to constitute due process of law cannot be cured by a curative statute.” In Miller v. McKenna, 23 Cal.2d 774, 782, 147 P.2d 531, 536, it used this language: “Among the jurisdictional requisites are * * * sufficient notice and opportunity for hearing to constitute compliance with due process.”

The type of notice to which a party is entitled is indicated in Hill Military Academy v. Portland, 152 Or. 272, 53 P.2d 55, 58, wherein it is said that he must be notified of the time and place of hearing, and that he shall have a right to be present and make objections. No such opportunity was given the moving party herein.

If movant’s motion were not granted, he would be deprived of his property without due process of law in violation of the Fifth Amendment to the United States Constitution. A basic requisite of that constitutional guarantee is that appropriate notice of judicial action be given to parties affected. As was said in Simon v. Craft, 182 U.S. 427, 436, 21 S.Ct. 836, 839, 45 L.Ed. 1165, “The essential elements of due process of law are notice and opportunity to defend.”

“The deprivation of the citizen of his property without notice and opportunity to be heard amounts to the taking of his property without due process of law.” Clarksburg-Columbus Short Route Bridge Co. v. Woodring, 67 App.D.C. 44, 89 F.2d 788, 790.

The case of Bekins v. Compton-Delevan Irr. Dist., 9 Cir., 150 F.2d 526, 530, discloses a situation closely comparable to the one involved herein. The position of the bondholder therein was even weaker than herein for the reason that the proceedings had gone to a final decree. The bonds were not presented within the period of time specified in said final decree.

The Court commented: “But it is also true that appellants had no notice of the entry of the final decree. Such notice could and should have been given. The clerk knew, and appellee knew, that appellants held these bonds and were entitled to be paid therefor $2,200 of the $13,640 which the disbursing agent had deposited with the clerk. The address of one (if not of both) of the appellants was known to the clerk and to appellee. There was no excuse for failing to notify appellants of the entry of the final decree.”

This Court is bound to hold similarly that notice could and should have been given the movant Kennedy of the entry of the interlocutory decree. Addresses were available in the file in the office of the clerk of this court to which such notice could have been addressed.

The Circuit Court of Appeals held (with reference to the provisions of the decree that bonds not presented within the time specified in the decree should be forever barred from participating in the plan of composition) that since “appellants had no notice of the entry of the final decree, we think these provisions should not apply to them.”

Said Court also held that the denial of the motion to pay the appellant bondholders the pro rata was an abuse of discretion on the part of the trial court because the denial “would lead to a grossly inequitable result.” It would be equally inequitable here to deny the motion of the bondholder, Frank Kennedy.

It is therefore ordered that the decree of this court heretofore made on the 6th day of June, 1944, and providing that if any bonds of Williams Irrigation District are not surrendered to the First National Bank of Willows, as the disbursing agent of this court, within 30 days after October 20, 1944, the proportionate sum to which the holder thereof may he entitled under the Plan of Composition and the terms of said decree shall be held by said disbursing agent and form a portion of the funds for final distribution to the creditors who have complied with said decree, be, and the same is hereby amended to provide that Frank Kennedy may surrender the 'aforesaid bonds owned by him at any time prior to the 25th day of October, 1945, and thereupon said Frank Kennedy shall have the right to receive such payment provided in the Plan of Composition and in said Decree.

It is hereby further ordered that Glenn-Colusa Irrigation District and the First National Bank of Willows, as the disbursing agent of this court, pay to Frank Kennedy the amount provided by the Plan of Composition upon the surrender and deposit of $3,000 principal amount of bonds of Williams Irrigation District, together with attached unpaid coupons maturing January 1, 1932, and subsequent, being bonds numbered 59, 60 and 99 of the Second Issue.