author:
Mr. Justice Stewart
      Mr. Justice Black, Mr. Justice Douglas,

text:
    CARTER et al. v. JURY COMMISSION OF GREENE COUNTY et al.
    No. 30.
    Argued October 21, 1969
    Decided January 19, 1970

      Norman C. Amaker argued the cause for appellants. With him on the briefs were Jack Greenberg and Orzell Billingsley, Jr.

      Leslie Hall argued the cause for appellees. On the brief were MacDonald Gallion, Attorney General of Alabama, and Robert P. Bradley and Jasper B. Roberts, Assistant Attorneys General.
   Mr. Justice Stewart

delivered the opinion of the Court.

The appellants, Negro citizens of Greene County, Alabama, commenced this class action against officials charged with the administration of the State’s jury-selection laws: the county jury commissioners and their clerk, the local circuit court judge, and the Governor of Alabama. The complaint alleged that the appellants were fully qualified to serve as jurors and desired to serve, but had never been summoned for jury service. It charged that the appellees had effected a discriminatory exclusion of Negroes from grand and petit juries in Greene County — the Governor in his selection of the county jury commission, and the commissioners and judge in their arbitrary exclusion of Negroes. The complaint sought (1) a declaration that qualified Negroes were systematically excluded from Greene County grand and petit juries, that the Alabama statutes governing jury selection were unconstitutional on their face and as applied, and that the jury commission was a deliberately segregated governmental agency; (2) a permanent injunction forbidding the systematic exclusion of Negroes from Greene County juries pursuant to the challenged statutes and requiring that all eligible Negroes be placed on the jury roll; and (3) an order vacating the appointments of the jury commissioners and compelling the Governor to select new members without racial discrimination.

Alabama’s jury-selection procedure is governed by statute. Ala. Code, Tit. 30, § 1 et seg. (1958 and Supp. 1967). The Governor appoints a three-member jury commission for each county. §§ 8-10. The commission employs a clerk, § 15, who is charged with the duty of obtaining the name of every citizen of the county over 21 and under 65 years of age, together with his occupation and places of residence and business. § 18. The clerk must “'scan the registration lists, the lists returned to the tax assessor, any city directories, telephone directories and any and every other source of information from which he may obtain information . . . .” § 24. He must also “visit every precinct at least once a year to enable the jury commission to properly perform the duties required of it . . . Ibid. Once the clerk submits his list of names, the commission is under a duty to prepare a jury roll and jury box containing the names of all qualified, nonexempt citizens in the county, §§ 20, 24, who are “generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment . . . § 21.

A three-judge District Court, convened pursuant to 28 U. S. C. §§ 2281 and 2284, conducted an extensive evidentiary hearing on the appellants’ complaint. The record fully supports the trial court’s conclusion, set out in its detailed opinion, that the jury-selection process as it actually operated in Greene County at the outset of this litigation departed from the statutory mandate in several respects:

“The clerk does not obtain the names of all potentially eligible jurors as provided by § 18, in fact was not aware that the statute directed that this be done and knew of no way in which she could do it. The starting point each year is last year’s roll. Everyone thereon is considered to be qualified and remains on the roll unless he dies or moves away (or, presumably, is convicted of a felony). New names are added to the old roll. Almost all of the work of the commission is devoted to securing names of persons suggested for consideration as new jurors. The clerk performs some duties directed toward securing such names. This is a part-time task, done without compensation, in spare time available from performance of her duties as clerk of the Circuit Court. She uses voter lists but not the tax assessor’s lists. Telephone directories for some of the communities are referred to, city directories not at all since Greene County is largely rural.
“The clerk goes into each of the eleven beats or precincts annually, usually one time. Her trips out into the county for this purpose never consume a full day. At various places in the county she talks with persons she knows and secures suggested names. She is acquainted with a good many Negroes, but very few ‘out in the county.’ She does not know the reputation of most of the Negroes in the county. Because of her duties as clerk of the Circuit Court the names and reputations of Negroes most familiar to her are those who have been convicted of crime or have been ‘in trouble.’ She does not know any Negro ministers, does not seek names from any Negro or white churches or fraternal organizations. She obtains some names from the county’s Negro deputy sheriff.
“The commission members also secure some names, but on a basis no more regular or formalized than the efforts of the clerk. The commissioners ‘ask around,’ each usually in the area of the county where he resides, and secure a few names, chiefly from white persons. Some of the names are obtained from public officials, substantially all of whom are white.
“One commissioner testified that he asked for names and that if people didn’t give him names he could not submit them. He accepts pay for one day’s work each year, stating that he does not have a lot of time to put on jury commission work. . . . He takes the word of thpse who recommend people, checks no further and sees no need to check further, considering that he is to rely on the judgment of others. He makes no inquiry or determination whether persons suggested can read or write .... Neither commissioners nor clerk have any social contacts with Negroes or belong to any of the same organizations.
“Through its yearly meeting in August, 1966, the jury commission met once each year usually for one day, sometimes for two, to prepare a new roll. New names presented by clerk and commissioners, and some sent in by letter, were considered. The clerk checked them against court records of felony convictions. New names decided upon as acceptable were added to the old roll. The names of those on the old roll who had died or moved away were removed.
“At the August, 1966 meeting one commissioner was new and submitted no names, white or Negro, and merely did clerical work at the meeting. Another had been ill and able to seek names little if at all. The third could remember one Negro name that he suggested. This commissioner brought the name, or names, he proposed on a trade bill he had received, and after so using it threw it away. All lists of suggested names were destroyed. As a result of that meeting the number of Negro names on the jury roll increased by 37. . . . Approximately 32 of those names came from lists given the clerk or commissioners by others. The testimony is that at the one-day August meeting the entire voter list was scanned. It contained the names of around 2,000 Negroes.
“Thus in practice, through the August, 1966 meeting the system operated exactly in reverse from what the state statutes contemplate. It produced a small group of individually selected or recommended names for' consideration. Those potentially qualified but whose names were never focused upon were given no consideration. Those who prepared the roll and administered the system were white and with limited means of contact with the Negro community. Though they recognized that the most pertinent information as to which Negroes do, and which do not, meet the statutory qualifications comes from Negroes there was no meaningful procedure by which Negro names were fed into the machinery for consideration or effectual means of communication by which the knowledge possessed by the Negro community was utilized. In practice most of the work of the commission has been devoted to the function of securing names to be considered. Once a name has come up for consideration it usually has been added to the rolls unless that person has been convicted of a felony. The function of applying the statutory criteria has been carried out only in part, or by accepting as conclusive the judgment of others, and for some criteria not at all.”

The District Court’s further findings demonstrated the impact of the selection process on the racial composition of Greene County juries. According to the 1960 census, Negroes composed three-fourths of the county’s population. Yet from 1961 to 1963 the largest number of Negroes ever to appear on the jury list was about 7% of the total. The court noted that in 1964 a single-judge federal district court had entered a declaratory judgment setting forth the duties of the jury commissioners and their clerk under Alabama law, instructing them not to pursue a course of conduct operating to discriminate against Negroes, forbidding them to employ numerical or proportional limitations with respect to race, and directing an examination of the jury roll for compliance with the judgment. Thereafter, the situation had improved only marginally. In 1966 only 82 Negroes appeared among the 471 citizens listed on the jury roll; 50% of the white male population of the county found its way to the jury roll in that year, but only 4% of the Negro. In 1967, following a statutory amendment, the commission added women to the jury roll. Upon the expansion of the list, Negroes composed 388 of the 1,198 potential jurors — still only 32% of the total, even though the 1967 population of the county was estimated to be about 65% Negro.

The District Court found that “there is invalid exclusion of Negroes on a racially discriminatory basis.” It enjoined the jury commissioners and their clerk from systematically excluding Negroes from the jury roll, and directed them “to take prompt action to compile a jury list ... in accordance with the laws of Alabama and . . . constitutional principles”; to file a jury list so compiled within 60 days, showing the information required by Alabama law for each potential juror, together with his race and, if available, his age; and to submit a report setting forth the procedure by which the commission had compiled the list and applied the statutory qualifications and exclusions.

The court declined, however, either to enjoin the enforcement of the challenged Alabama statutory provisions or to direct the Governor to appoint Negroes to the jury commission. From these rulings the appellants took a direct appeal to this Court pursuant to 28 U. S. C. § 1253. We noted probable jurisdiction. 393 U. S. 1115.

I

This is the first case to reach the Court in which an attack upon alleged racial discrimination in choosing juries has been made by plaintiffs seeking affirmative relief, rather than by defendants challenging judgments of criminal conviction on the ground of systematic exclusion of Negroes from the grand juries that indicted them, the trial juries that found them guilty, or both. The District Court found no barrier to such a suit, and neither do we. Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion. Surely there is no jurisdictional or procedural bar to an attack upon systematic jury discrimination by way of a civil suit such as the one brought here. The federal claim is bottomed on the simple proposition that the State, acting through its agents, has refused to consider the appellants for jury service solely because of their race. Whether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise. Once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so, it must hew to federal constitutional criteria in ensuring that the selection of membership is free of racial bias. The exclusion of Negroes from jury service because of their race is “practically a brand upon them ... , an assertion of their inferiority . . . .” That kind of discrimination contravenes the very idea of a jury — “a body truly representative of the community,” composed of “the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.”

II

On the merits, the appellants argue that the District Court erred in refusing to invalidate the Alabama statute requiring the jury commissioners to select for jury service those persons who are “generally reputed to be honest and intelligent and . . . esteemed in the community for their integrity, good character and sound judgment . . . Ala. Code, Tit. 30, §21 (Supp. 1967). The appellants say § 21 is unconstitutional on its face because, by leaving Alabama’s jury officials at large in their selection of potential jurors, it provides them an opportunity to discriminate on the basis of race — an opportunity of which they have in fact taken advantage. Specifically, the charge is that § 21 leaves the commissioners free to give effect to their belief that Negroes are generally inferior to white people and so less likely to measure up to the statutory requirements; to the commissioners’ fear that white people in the community will suffer if Negroes are accorded the opportunity to exercise the power of their majority; and to the commissioners’ preference for Negroes who tend not to assert their right to legal and social equality. The appellants say the injunctive relief granted by the District Court is inadequate, because the history of jury selection in Greene County demonstrates a practice of discrimination persisting despite the federal court’s prior grant of declaratory relief. Moreover, so long as § 21 remains the law, it is argued, Negro citizens throughout Alabama will be obliged to attack the jury-selection process on a county-by-county basis, thereby imposing a heavy burden on already congested court dockets and delaying the day that Alabama will be free of discriminatory jury selection.

While there is force in what the appellants say, we cannot agree that § 21 is irredeemably invalid on its face. It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. “Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.”

Statutory provisions such as those found in § 21 are not peculiar to Alabama, or to any particular region of the country. Nearly every State requires that its jurors be citizens of the United States, residents of the locality, of a specified minimum age, and able to understand English. Many of the States require that jurors be of “good character” or the like; some, that they be “intelligent” or “well informed.”

Provisions of similar breadth have been challenged here and sustained before. In Franklin v. South Carolina , the Court rejected a similar attack upon a jury-selection statute alleged by the plaintiff in error to have conferred arbitrary power upon the jury commissioners. The pertinent law there provided that the commissioners should “prepare a list of such, qualified electors under the provisions of the constitution, between the ages of twenty-one and sixty-five years, and of good moral character, of their, respective counties as they may deem otherwise well qualified to serve as jurors, being persons of sound judgment and free from all legal exceptions, which list shall include not less than one from every three of such qualified electors . . . In upholding the validity of these standards, the Court said:

“We do not think there is anything in this provision of the statute having the effect to deny rights secured by the Federal Constitution. . . . There is nothing in this statute which discriminates against individuals on account of race or color or previous condition, or which subjects such persons to any other or different treatment than other electors who may be qualified to serve as jurors. The statute simply provides for an exercise of judgment in attempting to secure competent jurors of proper qualifications.”

Again, in Smith v. Texas, we dealt with a statute leaving a wide range of choice to the commissioners. Yet we expressly upheld the validity of the law. The statutory scheme was not in itself unfair; it was “capable of being carried out with no racial discrimination whatsoever.”

No less can be said of the statutory standards attacked in the present case. Despite the overwhelming proof the appellants have adduced in support of their claim that the jury clerk and commissioners have abused the discretion that Alabama law confers on them in the preparation of the jury roll, we cannot say that § 21 is necessarily and under all circumstances invalid. The provision is devoid of any mention of race. Its antecedents are of ancient vintage, and there is no suggestion that the law was originally adopted or subsequently carried forward for the purpose of fostering racial discrimination. The federal courts are not incompetent to fashion detailed and stringent injunctive relief that will remedy any discriminatory application of the statute at the hands of the officials empowered to administer it. In sum, we cannot conclude, even on so compelling a record as that before us, that the guarantees of the Constitution can be secured only by the total invalidation of the challenged provisions of § 21.

Ill

The appellants also attack the composition of the Greene County jury commission. They urge that the record demonstrates the causal relation between the conceded absence of Negroes from the commission for at least the past decade and the systematic racial discrimination in the selection of potential jurors established before the District Court. It is argued that even the best-intentioned white jury commissioners are unlikely to know many Negroes who satisfy the statutory qualifications and that white jury officials in Alabama generally regard Negroes as incapable of satisfying the prerequisites for jury membership. Having shown a course of continuing and consistent disregard of statutory and constitutional standards on the part of the Greene County jury commissioners and the clerk, the appellants contend that if the discretionary provisions of § 21 are to remain the law, it is essential that the jury commission be representative of the community in which it functions, particularly in an area such as Greene County, where Negroes constitute a majority of the population. The District Court erred, the appellants say, in not ordering the Governor of Alabama to appoint Negroes to the Greene County jury commission.

The claim was not presented to the District Court in precisely these terms. There the appellants did not urge that white commissioners could not perform their statutory task in an unbiased manner in a predominantly Negro county. Rather, they contended that the Governor of Alabama had deliberately appointed a segregated jury commission in exercising the discretion conferred upon him by statute. The argument, in short, went to the alleged racial discrimination in the appointment of the commission, not to the biases inherent in a commission composed entirely of white people, without regard to claimed discriminatory selection by the Governor.

For present purposes we may assume that the State may no more exclude Negroes from service on the jury commission because of their race than from the juries themselves. But the District Court found the appellants had shown only that for many years the jury commission had been composed entirely of white men, and concluded that without more the appellants’ attack failed for want of proof. We think that ruling was correct. Quite apart from the problems that would be involved in a federal court’s ordering the Governor of a State to exercise his discretion in a particular way, we cannot say on this record that the absence of Negroes from the Greene County jury commission amounted in itself to a prima facie showing of discriminatory exclusion. The testimony before the District Court indicated that the Governor had appointed no Negroes to the Greene County commission during the 12 years preceding the commencement of suit. But the appellants’ trial counsel conceded that he could not prove his charge of discriminatory selection without the testimony of the Governor. Whether or not such a concession was necessary, the statement may well have led counsel for the appellees to conclude that they were not obliged to produce witnesses on the State’s behalf with respect to this phase of the appellants’ case.

Nor can we uphold the appellants’ present contention that, apart from the question of discrimination in the composition of the jury commission, the absence of Negroes from the commission compelled the District Court to order the appointment of Negro commissioners. The appellants are no more entitled to proportional representation by race on the jury commission than on any particular grand or petit jury.

IV

There remains the question of the propriety of the relief afforded the appellants by the District Court. The court, as we have noted, enjoined the jury clerk and commissioners from systematically excluding Negroes from the Greene County jury roll, and directed them “to take prompt action to compile a jury list ... in accordance with the laws of Alabama and . . . constitutional principles . . . .” Pursuant to the court’s order, the commission submitted a new jury roll, dated November 6, 1968. The clerk stated she had been into each of the precincts of Greene County and had contacted people of both races by personal visit, letter, or telephone; with their recommendations and with the help of the voting list and telephone directory, the commission compiled a new jury roll. Whether this roll complies with the terms of the District Court’s decree is a matter for that court to consider in the first instance. The court properly recognized that other and further relief might be appropriate. For that court “has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.”

Accordingly, the judgment below is affirmed, without prejudice to the right of the appellants to seek modification of the District Court’s decree as circumstances may require.

It is so ordered.

Mr. Justice Black,

concurring.

I concur in the judgment and opinion of the Court except insofar as it may leave an implication that this Court has the power to vacate a state governor’s appointment of jury commissioners or the power to compel the governor of a State to appoint Negroes or any other persons to the office of jury commissioner. In my judgment the Constitution no more grants this Court the power to compel a governor to appoint or reject a certain individual or a member of any particular group than it grants this Court the power to compel the voters of a State to elect or defeat a particular person or a member of a particular group.

Mr. Justice Douglas,

dissenting in part.

There comes a time when an organ or agency of state law has proved itself to have such a racist mission that it should not survive constitutional challenge. The instances are not numerous in our history. But they have appeared. One was present in Louisiana v. United States, 380 U. S. 145, where a state constitution required every voter who applied to register to “be able to understand” as well as “give a reasonable interpretation” of any section of the State or Federal Constitution “when read to him by the registrar.” Id., at 149. This interpretation test had had a history of depriving “otherwise qualified Negro citizens of their right to vote,” id., at 150, and was deemed incapable of fair application through policing by injunction. Id., at 150 n. 9. We therefore struck it down.

The District Court in the instant case held that “[t]he attack on racial composition of the [jury] commission fails for want of proof. No proof was adduced except that the commission in Greene County now is and for many years has been composed entirely of white men appointed by the governor.” 298 F. Supp. 181, 192. But, as the opinion of the Court states, the record shows much more: it demonstrates a systematic exclusion of Negroes from juries in Greene County even though the Negroes outnumber the whites by two to one. It shows (1) that the white jury officials — consistent with southern racial patterns — had little, if any, contacts with Negroes; (2) that the officials knew very few Negroes and practically nothing about the black community; (3) that only a few Negroes were contacted to secure black names for jury listing; (4) that in applying the statutorily created subjective standards, the white jury officials relied, not only on their own subjective judgments, but also on the subjective judgments of other people; (5) that few Negroes could be expected to pass muster under these standards; and (6) that, as stated by the Court, “[i]n 1966 only 82 Negroes appeared among the 471 citizens listed on the jury roll; 50% of the white male population of the county found its way to the jury roll in that year, but only 4% of the Negro. In 1967, following a statutory amendment, the commission added women to the jury roll. Upon the expansion of the list, Negroes composed 388 of the 1,198 potential jurors— still only 32% of the total, even though the 1967 population of the county was estimated to be about 65% Negro.” Ante, at 327-328.

I cannot see any solution to the present problem, unless the jury commission is by law required to be bi-racial. In the Kingdom of Heaven, an all-white or an all-black commission could be expected to do equal justice to all races in the selection of people “generally reputed to be honest and intelligent” and “esteemed in the community for their integrity, good character and sound judgment.” Ala. Code, Tit. 30, § 21 (Supp. 1967). But, where there exists a pattern of discrimination, an all-white or all-black jury commission in these times probably means that the race in power retains authority to control the community’s official life, and that no jury will likely be selected that is a true cross-section of the community.

We have often said that no jury need represent proportionally a cross-section of the community. See Swain v. Alabama, 380 U. S. 202, 208-209; Cassell v. Texas, 339 U. S. 282, 286-287. Jury selection is largely by chance; and no matter what the race of the defendant, he bears the risk that no racial component, presumably favorable to him, will appear on the jury that tries him. The law only requires that the panel not be purposely unrepresentative. See Whitus v. Georgia, 385 U. S. 545, 550. Those finally chosen may have no minority representation as a result of the operation of chance, challenges for cause, and peremptory challenges.

The problem in the present case is to keep the selective process free of any racist influence. That implicates the jury commission that has continuing oversight over the operation of the jury system.

I expressed my doubts in Sellers v. Laird, 395 U. S. 950, whether under the Selective Service System an all-white board could be expected to do equal justice to Negro registrants, at least as respects many problems. Those doubts are resolved here, because of the established pattern of racial discrimination which this all-white jury commission has credited to it. India has handled this type of problem by constitutional amendment. But our constitutional mandate against racial discrimination is sufficient without more.

Where the challenged state agency, dealing with the rights and liberties of the citizen, has a record of racial discrimination, the corrective remedy is proportional representation. Under our Constitution that would indeed seem to be the only effective control over the type of racial discrimination long practiced in this case.

I would not write a decree that requires a governor to name two Negroes out of three commissioners. I would go no further than to strike down this jury commission system, because it does not provide for proportional representation of the two races.

       The sole purpose of these requirements is to insure that the jury commissioners will have as complete a list as possible of names, compiled on an objective basis, from which to select qualified jurors.” Mitchell v. Johnson, 250 F. Supp. 117, 123.

       The commission may not select any person who is under 21, a habitual drunkard, unfit to discharge a juror’s duties because afflicted with a permanent disease or physical weakness, or unable to read English, nor anyone who has been convicted of an offense involving moral turpitude. A person who would be disqualified only because he cannot read English is still eligible for jury service if he is a freeholder or householder. A person over 65 may not be required to serve but is eligible if he is willing to do so. §21. The commission is also required to exempt various classes of persons, based on their occupation, unless they consent to serve. § 3. In addition, the court may excuse any person who appears to be unfit to serve on a jury, or who is disqualified or exempt, “or for any other reasonable or proper cause . . . .” §§4, 5.
      Until 1966 only men were eligible for service. The blanket exclusion of women was declared unconstitutional in White v. Crook, 251 F. Supp. 401, 408-409; thereafter Alabama amended its statutes to render women eligible. § 21 (1). The trial judge may, however, excuse them from jury duty for good cause shown. § 21.
      The requirement that the commission place the name of every qualified, nonexempt person on the jury roll is permissive, not mandatory, in that the jury commission’s failure to do so does not, absent fraud or denial of constitutional rights, compel the quashing of the indictment or venire. Fikes v. State, 263 Ala. 89, 95, 81 So. 2d 303, 309, rev’d on other grounds, 352 U. S. 191; see Swain v. Alabama, 380 U. S. 202, 207 n. 3; White v. Crook, supra, at 403 n. 6; Mitchell v. Johnson, supra, at 119 n. 5.

         Bokulich v. Jury Commission of Greene County, 298 F. Supp. 181, 187-188. (Footnotes omitted.)

        Coleman v. Barton, No. 63-4 (N. D. Ala. 1964). The opinion is unreported. See 298 F. Supp., at 184.

       In 1966 Alabama still limited jury service to males. See n. 2, supra.

       The District Court rejected the appellees’ contention that an emigration of younger and better-educated Negroes from the county in the 1960’s accounted for the disparity between the racial composition of the county in 1960 and of the jury rolls during the succeeding years of the decade. 298 F. Supp., at 188. See Coleman v. Alabama, 389 U. S. 22, 23.

       Other plaintiffs in the suit sought similar relief, as well as an injunction to prevent the grand jury from considering charges of grand larceny then outstanding against them. The District Court denied relief with respect to those plaintiffs, and they took a separate appeal. We affirmed that portion of the District Court’s judgment last Term, and those plaintiffs are no longer before us. Bokulich v. Jury Commission of Greene County, 394 U. S. 97 (per curiam).

        Arnold v. North Carolina, 376 U. S. 773 (per curiam); Eubanks v. Louisiana, 356 U. S. 584; Reece v. Georgia, 350 U. S. 85, 87; Cassell v. Texas, 339 U. S. 282; Hill v. Texas, 316 U. S. 400, 404, 406; Smith v. Texas, 311 U. S. 128, 129-130; Pierre v. Louisiana, 306 U. S. 354, 356-358, 362; Rogers v. Alabama, 192 U. S. 226, 231; Carter v. Texas, 177 U. S. 442, 447; Bush v. Kentucky, 107 U. S. 110, 121.

        Avery v. Georgia, 345 U. S. 559; Hollins v. Oklahoma, 295 U. S. 394 (per curiam).

        Sims v. Georgia, 389 U. S. 404, 407-408; Whitus v. Georgia, 385 U. S. 545; Swain v. Alabama, 380 U. S. 202; Coleman v. Alabama, 377 U. S. 129; Patton v. Mississippi, 332 U. S. 463; Hale v. Kentucky, 303 U. S. 613 (per curiam); Norris v. Alabama, 294 U. S. 587, 589; Martin v. Texas, 200 U. S. 316, 319; Neal v. Delaware, 103 U. S. 370, 396-397; Strauder v. West Virginia, 100 U. S. 303.

        Billingsley v. Clayton, 359 F. 2d 13, 16 (en banc); Jewell v. Stebbins, 288 F. Supp. 600, 604-605; White v. Crook, 251 F. Supp. 401, 405-406; Mitchell v. Johnson, 250 F. Supp. 117, 121. See Kuhn, Jury Discrimination: The Next Phase, 41 S. Cal. L. Rev. 235, 247-249; Note, The Congress, The Court and Jury Selection: A Critique of Titles I and II of the Civil Rights Bill of 1966, 52 Va. L. Rev. 1069, 1084-1094 (1966).

       Cf. Carrington v. Rash, 380 U. S. 89, 91; Lassiter v. Northampton County Board of Elections, 360 U. S. 45, 50-51; Pope v. Williams, 193 U. S. 621, 632.

       Compare Duncan v. Louisiana, 391 U. S. 145, with Hurtado v. California, 110 U. S. 516.

       See Ex parte Virginia, 100 U. S. 339, 346-347; Virginia v. Rives, 100 U. S. 313, 321.

        Strauder v. West Virginia, supra, at 308.

        Smith v. Texas, supra, at 130.

        Strauder v. West Virginia, supra. Congress, recognizing such a right, has long provided a criminal sanction for its violation:
      “No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.” 18 U. S. C. § 243.

       Cf. Whitus v. Georgia, supra, at 552.

       Cf. Witcher v. Peyton, 405 F. 2d 725, 727.

       Cf. Gray v. Main, 309 F. Supp. 207, 224.

       Cf. Brooks v. Beto, 366 F. 2d 1, 27 (Wisdom, J., concurring in result), cert, denied, 386 U. S. 975.

       According to the appellants, civil suits challenging alleged racial discrimination in jury selection have been commenced in federal district courts throughout Alabama.

        Brown v. Allen, 344 U. S. 443, 473 (opinion of Mr. Justice Reed, announcing judgment); Cassell v. Texas, supra, at 291 (Frankfurter, J., concurring in judgment); Virginia v. Rives, supra, at 334r-335 (Field J., concurring in judgment); Strauder v. West Virginia, supra, at 310.

         Neal v. Delaware, supra, at 386; Strauder v. West Virginia, supra,

        Gibson v. Mississippi, 162 U. S. 565, 589. The federal courts have upheld similar qualifications in reviewing their own jury-selection system. See, e. g., United States v. Flynn, 216 F. 2d 354, 388 (C. A. 2d Cir.) (Harlan, J.), cert. denied, 348 U. S. 909; United States v. Dennis, 183 F. 2d 201, 220 (C. A. 2d Cir.) (L. Hand, J.), cert. granted, limited to other grounds, 340 U. S. 863.

        Brown v. Allen, supra, at 474 (opinion of Mr. Justice Reed, announcing judgment).

       See, e. g., Ariz. Rev. Stat. Ann. § 21-201 (1956); Wis. Stat. Ann. §255.01 (1) (Supp. 1969).

       See, e. g., Cal. Civ. Pro. Code § 198 (1954); Wash. Rev. Code §2.36.070 (2) (1956).

        E. g., Colo. Rev. Stat. Ann. § 78-1-1 (1) (1963) (21 years old); Md. Ann. Code, Art. 51, § 1 (1968 Repl. Vol.) (25 years); Hawaii Rev. Stat. §609-1 (1) (1968) (20 years); Neb. Rev. Stat. §25-1601 (1) (1964) (25 years); R. I. Gen. Laws Ann. § 9-9-1 (1956) (same).

       See, e. g., Pa. Stat. Ann., Tit. 17, § 1322 (1962). Vermont has delegated the function of determining qualifications to court administrators. Vt. Stat. Ann., Tit. 4, § 902 (Supp. 1969).

       Ariz. Rev. Stat. Ann. §21-201 (1956); Ark. Stat. Ann. §39-206 (1962 Repl. Vol.); Conn. Gen. Stat. Rev. §51-217 (1968); Fla. Stat. § 40.01 (3) (1965); Hawaii Rev. Stat. § 609-1 (3) (1968); 111. Rev. Stat., c. 78, §2 (1967) (“fair character”); Iowa Code §607.1 (1966); Kan. Stat. Ann. §43-102 (1964); Ky. Rev. Stat. § 29.025 (1962) (“temperate, discreet, and of good demeanor”); Me. Rev. Stat. Ann., Tit. 14, §1254 (1964); Neb. Rev. Stat. §25-1601 (1) (1964) (“fair character”); N. Y. Judiciary Law § 504 (4) (Supp. 1969); Okla. Stht. Ann., Tit. 38, § 28 (Supp. 1969); S. C. Code Ann. § 38-52 (Supp. 1968); Tex. Rev. Civ. Stat. Ann., Art. 2133 (2) (1964); Wis. Stat. Ann. §255.01 (5) (Supp. 1969).
      Another phrase frequently found is “approved integrity.” E. g., Conn. Gen. Stat. Rev. § 51-217 (1968); Fla. Stat. § 40.01 (3) (1965); in. Rev. Stat., c. 78, §2 (1967); Kan. Stat. Ann. §43-102 (1964); Me. Rev. Stat. Ann., Tit. 14, § 1254 (1964); Neb. Rev. Stat. §25-1601 (1) (1964). See also Ariz. Rev. Stat. Ann. §21-201 (1956) (“sober”); Md. Ann. Code, Art. 51, § 9 (Supp. 1968) (“integrity”); Miss. Code Ann. § 1762-02 (Supp. 1968) (not a “habitual drunkard”); Mo. Ann. Stat. §494.010 (Supp. 1969) (“sober”); Okla. Stat. Ann., Tit. 38, § 28 (Supp. 1969) (not a habitual drunkard); Tenn. Code Ann. § 22-102 (1955) (same); W. Va. Code Ann. § 52-1-2 (1966) (same); cf. N. H. Rev. Stat. Ann. §500:29 (1968 Repl. Vol.) (disqualification on account of “vicious habits”); Wash. Rev. Code § 2.36.110 (1959) (“unfit persons” must be excused).

       Ariz. Rev. Stat. Ann. §21-201 (1956); Cal. Civ. Pro. Code § 198 (1954); Fla. Stat. § 40.01 (3) (1965); Hawaii Rev. Stat. § 609-1 (3) (1968); Md. Ann. Code, Art. 51, § 9 (Supp. 1968); Mo. Ann. Stat. §494.010 (Supp. 1969); Mont. Rev. Codes Ann. § 93-1301 (2) (1964 Repl. Vol.); Neb.’ Rev. Stat. § 25-1601 (1) (1964); N. Y. Judiciary Law § 596 (5) (1968) (only for cities of one million in population); Wyo. Stat. Ann. § 1-77 (2) (Supp. 1969). See also Conn. Gen. Stat. Rev. § 51-217 (196S) (“sound judgment”); Fla. Stat. § 40.01 (3) (1965) (same); 111. Rev. Stat., c. 78, § 2 (1967) (same); Iowa Code § 607.1 (1966) (same); Me. Rev. Stat. Ann., Tit. 14, § 1254 (1964) (same); N. D. Cent. Code §27-09-01 (1960) (“sound mind and discretion”); Okla. Stat. Ann., Tit. 38, § 28 (Supp. 1969) (same); S. C. Code Ann. § 38-52 (Supp. 1968) (“sound judgment”); Utah Code Ann. § 78-46-8 (5) (1953) (“sound mind and discretion”); Wis. Stat. Ann. § 255.01 (5) (Supp. 1969) (“sound judgment”).

       Ill. Rev. Stat., c. 78, § 2 (1967); Kan. Stat. Ann. § 43-102 (1964); Me. Rev. Stat. Ann., Tit. 14, § 1254 (1964); Neb. Rev. Stat. §25-1601 (1) (1964); see Conn. Gen. Stat. Rev. §51-217 (1968) (“fair education”). See Note, The Congress, The Court and Jury Selection: A Critique of Titles I and II of the Civil Rights Bill of 1966, 52 Va. L. Rev. 1069, 1072-1073 (1966) (collecting references).

       218 U. S. 161.

       218 U. S., at 167-168.

       311 U. S. 128.

       See Akins v. Texas, 325 U. S. 398, 402-403 and n. 3.

       311 U. S., at 130-131. (Footnote omitted.) Cf. Hernandez v. Texas, 347 U. S. 475, 478-479, and Cassell v. Texas, supra, at 284, where no challenge was made to the statutory scheme.

       From the earliest consideration of racial discrimination in jury-selection, the Court has consistently distinguished, for purposes of determining the removability of a state criminal proceeding to a federal court, between a statute expressly excluding Negroes from jury service and one neutral on its face with respect to race but challenged as discriminatorily applied. Compare Murray v. Louisiana, 163 U. S. 101, 105-106; Smith v. Mississippi, 162 U. S. 592, 600; Gibson v. Mississippi, supra, at 579-586; Bush v. Kentucky, supra, at 116; Neal v. Delaware, supra, at 386-393; Virginia v. Rives, supra, at 318-323, with Strauder v. West Virginia, supra, at 310-312. See City of Greenwood v. Peacock, 384 U. S. 808, 827-828; Georgia v. Rachel, 384 U. S. 780, 797-804.

       See Ala. Pen. Code of 1841, c. X, §§ 1,3.

         Such considerations distinguish the present case from Louisiana v. United States, 380 U. S. 145, where we invalidated a provision of the Louisiana Constitution that vested in the State’s voting registrars “a virtually uncontrolled discretion as to who should vote and who should not,” and that had been abused “to deprive otherwise qualified Negro citizens of their right to vote . . . .” 380 U. S., at 150. The District Court found that the constitutional provision, as written and as applied, was “part of a successful plan to deprive Louisiana Negroes of their right to vote.” 380 U. S., at 151, aff’g 225 F. Supp. 353, 356, 363-381. Cf. South Carolina v. Katzenbach, 383 U. S. 301, 312-313; United States v. Mississippi, 380 U. S. 128, 131-136, 143-144; Alabama v. United States, 371 U. S. 37, per curiam, aff’g 304 F. 2d 583, 584-589, aff’g 192 F. Supp. 677; Schnell v. Davis, 336 U. S. 933, per curiam, aff’g 81 F. Supp. 872, 876, 878-880.

       In Louisiana v. United States, supra, the District Court held the challenged constitutional provision invalid per se on the basis of its finding that in view of the provision’s “vote-abridging purpose and effect,” its vices could not be cured by an injunction prohibiting its unfair application. 225 F. Supp., at 391, aff’d, 380 U. S., at 150 and n. 9. Cf. Davis v. Schnell, 81 F. Supp., at 877.

       The District Court granted a motion to quash the subpoena served on the Governor when it appeared that the appellants had failed to tender him his fees. See Fed. Rule Civ. Proc. 45 (c).

        Moore v. Henslee, 276 F. 2d 876, 878-879; cf. Swain v. Alabama, supra, at 208; Cassell v. Texas, supra, at 291 (Frankfurter, J., concurring in judgment); Akins v. Texas, supra, at 403; Martin v. Texas, supra, at 320-321; Gibson v. Mississippi, supra, at 580; Bush v. Kentucky, supra, at 117; Neal v. Delaware, supra, at 394; Virginia v. Rives, supra, at 323; see Hoyt v. Florida, 368 U. S. 57, 59, 69.

       See 298 F. Supp., at 193.

        Louisiana v. United States, 380 U. S. 145, 154. Cf. Alabama v. United States, 304 F. 2d 583, 590-591, aff’d, 371 U. S. 37 (per curiam). Of particular relevance is the decree drawn by District Judge Johnson in Mitchell v. Johnson, in the District Court for the Middle District of Alabama, 250 F. Supp. 117, 123-124:
      “The relief to be afforded in this case will involve not only the issuance of a prohibitory injunction, but an injunction requiring immediate affirmative action by the jury commissioners by their emptying the . . . County jury box, abandoning the present . . . jury roll without any further use of either, and by their compiling a jury roll and refilling the jury box in strict accordance with the law of Alabama and the constitutional principles herein set forth. ... In remedying this wrong, the defendants are cautioned that if they apply Alabama’s qualifications for jury service — particularly that qualification relating to good character and sound judgment and that qualification concerning the requirement that prospective jurors be able to read English — these qualification requirements must be imposed fairly and objectively and administered to all regardless of race, in a nondiscriminatory manner. . . .
      “Failure on the part of the defendants to comply immediately and in good faith with the requirements of this opinion and order will necessitate the appointment by this Court of a master or panel of masters to recompile the jury roll and to empty and refill the . . . jury box.” (Footnotes omitted.)
      Accord: Pullum v. Greene, 396 F. 2d 251, 257; Turner v. Spencer, 261 F. Supp. 542, 544; White v. Crook, 251 F. Supp. 401, 409-410.

       The Civil Rights Act of 1964, § 703, 78 Stat. 255, 42 U. S. C. § 2000e-2 (a), makes it unlawful for an employer on a federally financed project “to limit, segregate, or classify” his employees because of race. In commenting on the Philadelphia Plan, regulating employment on federally financed construction jobs, the Washington Post stated:
      “Quotas are understandably abhorrent to those seeking to do away with discrimination. A quota in this context means a ceiling. Some years ago, when colleges were accused of discriminating against religious minorities in their admission policies, they fixed quotas in percentage terms for these minorities based upon their ratio to the general population and not upon their ability to meet competitive entrance tests; these quotas then became a maximum for the admission of minority group students. The goals embodied in the Philadelphia Plan constitute a floor, not a ceiling, a minimum rather than a maximum; they constitute an agreement to enlarge job opportunities for minority workers, not restrict them; and so they are in complete conformity with the essential spirit and purpose of the Civil Rights Act.” Jan. 14, 1970, p. A18.

       The Constitution of India contains provisions for her economically and educationally deprived classes, including the untouchables. Article 15 (4) provides: “Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” This provision was added to the Constitution by a 1951 amendment, the object of which was to override the decision in State of Madras v. Dorairajan, All India Rptr. 1951 Sup. Ct. 226, and to make it constitutional for the State to reserve seats for backward classes of citizens and Scheduled Castes and Tribes in public educational institutions, or to take other similar action for their advancement.
      Article 16 (4), relating to public employment, provides: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” The objective of “adequate representation” applies not merely to lower government positions, but to all levels of government office. See General Manager, S. B. Co. v. Rangachari, All India Rptr. 1962 Sup. Ct. 36.
      Articles 330 and 332 provide for the reservation of seats for Scheduled Castes and Scheduled Tribes, except for the Scheduled Tribes in the tribal areas of Assam, in the House of the People and the legislative assembly of every State. Article 331 provides for the nomination of not more than two members of the Anglo-Indian community if the President is of the opinion that the community is not adequately represented in the House of the People. The reservation of seats mentioned above and the nomination of members of the Anglo-Indian community is to cease after 20 years, viz., January 1970. A constitutional amendment extending that time is now before the national parliament and the legislatures of the several States. See Indian & Foreign Review, Jan. 1,1970, p. 7.


source: Caselaw Access Project

author: Mr. Justice Stewart

license: Public Domain

text:
    TURNER et al. v. FOUCHE et al.
    No. 23.
    Argued October 20, 1969
    Decided January 19, 1970

      Michael Meltsner argued the causé for appellants. With him on the briefs were Jack Greenberg and Howard Moore, Jr.

      Alfred L. Evans, Jr., Assistant Attorney General of Georgia, argued the cause for appellees. With him on the brief for the State of Georgia were Arthur K. Bolton, Attorney Géneral, Howard N. Hill, Jr., Executive Assistant Attorney General, and J. Lee Perry, Assistant Attorney General.

      Charles J. Bloch and Wilbur D. Owens, Jr., filed a brief for appellees Fouche et al.
   Mr. Justice Stewart

delivered the opinion of the Court.

This case, a companion to Carter v. Jury Commission of Greene County, ante, p. 320, involves a challenge to the constitutionality of the system used in many counties of Georgia to select juries and school boards. The basic statutory scheme at issue is this. The county board of education consists of five freeholders. It is selected by the grand jury, which in turn is drawn from a jury list selected by the six-member county jury commission. The commissioners are appointed by the judge of the state superior court for the circuit in which the county is located.

Some 2,500 to 3,000 people live in Taliaferro County, Georgia, of whom about 60% are Negroes. The county school system consists of a grammar school and a high school, and all the students at both schools are Negroes, every white pupil having transferred elsewhere. Sandra and Calvin Turner, a Negro schoolchild and her father who reside in that county, brought this class action against the members of the county board of education, the jury commissioners, and three named white grand jurors. Their complaint alleged that the board of education consisted entirely of white people; that it had been selected by a predominantly white grand jury, which in turn had been selected by the jury commissioners, all of whom were white people. The complaint charged that the board of education had deprived the Negro schoolchildren of textbooks, facilities, and other advantages; also that the Turners and other Negro citizens had sought unsuccessfully to communicate their dissatisfaction to the board of education.

According to the appellants, the members of the county grand jury, on which white people were perennially overrepresented and Negroes underrepresented, chose only white people as members of the board of education pursuant to the Georgia constitutional and statutory provisions governing the school-board selection. The complaint attacked those provisions as accounting for both the exclusion of Negroes and nonfreeholders from the board of education, and for the merely token inclusion of Negroes on the grand juries. The appellants sought (1) an injunction prohibiting enforcement of the Georgia constitutional and statutory provisions by which the board of education and gránd jury were selected; (2) a declaration that the provisions were void on their face and as applied; (3) a further declaration that the various positions on the board of education, grand jury, and jury commission were vacant; (4) the appointment of a receiver for the school system and a special master for the selection of the grand jurors; and (5) $500,000 in ancillary damages.

A three-judge District Court was convened pursuant to 28 U. S. C. §§ 2281 and 2284, and conducted extensive evidentiary hearings. The evidence showed that whenever a jury commissioner thought a voter from his area of the county qualified as a potentially good juror, he offered the name for consideration to his fellow commissioners; if all agreed, the name went on the master jury list. No name of a county resident was placed on the list unless he was personally known to at least one of the jury commissioners. The commissioners looked for “people that we felt would be capable of interpreting proceedings of court and . . . render [ing] a just verdict . . . .” The state superior court judge had instructed them to put Negroes on the list. Following the compilation of the list, the commissioners “picked the ones we thought were the very best people in the county” and put them on the grand-jury list. The superior court judge then drew the names of the grand jurors at random in open court. Only he could excuse from grand-jury service those whose names he drew; and he denied that Negroes were ever excused out of turn, or on account of their race.

At its first hearing, held in January 1968, the District Court voiced its concern that only 11 Negroes had found their way to the 130-member grand-jury list. The court adjourned for one month to enable the defendants to remedy the situation. It noted that two vacancies had opened up on the board of education and that, although the board had held an interim election, the grand jury had not yet confirmed the new members. The court suggested that “[i]f those two men would willingly stand aside the other members might select two outstanding Negro citizens ... to go on the Board.” The court also advised counsel for the defendants to explain the law of jury discrimination to his clients, and expressed the hope that the jury commissioners would be “generous” in their recomposition of the panel.

At the adjourned hearing in February, it appeared that three days after the first hearing the state superior court judge had discharged the county grand jury and directed the jury commissioners to recompose the jury list. Working from the voter registration list at the last general election, the commissioners had prepared a new grand-jury list containing the names of 44 Negroes and 77 white people. From this list the superior court judge drew the names that led to the impaneling of a new grand jury of 23 members, of whom only six were Negroes. Meanwhile the board of education had elected a Negro and a white man to fill the two vacancies, and the new grand jury had confirmed the new members in their offices.

Following these developments, the District Court declined to invalidate on their face either the various provisions governing the school-board and grand-jury selections, or the freeholder requirement for school-board membership. It found that at the commencement of suit Negroes had been systematically excluded from the grand juries through token inclusion, but it concluded that the new grand-jury list, drawn following the January hearing, was not unconstitutional. 290 F. Supp. 648.

Subsequently the District Court entered a final judgment permanently enjoining the defendant jury commissioners and their successors from systematically excluding Negroes from the Taliaferro County grand-jury system. The appellants, complaining of the court’s failure to hold the challenged provisions of Georgia law invalid on their face and as applied, took a direct appeal to this Court pursuant to 28 U. S. C. § 1253, and we noted probable jurisdiction, 393 U. S. 1078.

I

The appellants urge that the constitutional and statutory scheme by which the Taliaferro County grand jury selects the board of education is unconstitutional on its face. They point to the discretion of the state superior court judge to exclude anyone he deems not “discreet” from appointment to the jury commission, and of the jury commissioners to eliminate from grand-jury service anyone they find not “upright” and “intelligent.” These provisions, the appellants say, provide the county officials an opportunity to discriminate exercised both before and after the commencement of this litigation. It is argued that the terms are so vague as to leave the judge and jury commissioners at large in the exercise of discretion, with their decisions “unguided by statutory or other guidelines.” Only by excising the challenged terms from Georgia’s laws, it is urged, can the jury discrimination revealed in the record of this case be eliminated.

Such arguments are similar to those advanced in Carter v. Jury Commission of Greene County, ante, p. 320. Our decision in that case fairly controls disposition of the contentions here. Georgia’s constitutional and statutory scheme for selecting its grand juries and boards of education is not inherently unfair, or necessarily incapable of administration without regard to race; the federal courts are not powerless to remedy unconstitutional departures from Georgia law by declaratory and injunctive relief. The challenged provisions do not refer to race; indeed, they impose on the jury commissioners the affirmative duty to supplement the jury lists by going out into the county and personally acquainting themselves with other citizens of the county whenever the jury lists in existence do not fairly represent a cross section of the county’s upright and intelligent citizens.

But the appellants contend that even if the challenged provisions are not void on their face, they have been unconstitutionally applied. The District Court found that prior to the commencement of suit Negroes had been excluded in the administration of the grand-jury system, and the appellees do not contest that finding here. The District Court also concluded that the newly composed grand-jury list was constitutional, and the appellants challenge that ruling. Consideration of the issues thus presented requires a fuller statement of the events following the January hearing in the court below.

As noted above, after the District Court had held its first hearing, the state superior court judge discharged the grand jury then sitting and ordered the jury commissioners to draw up a new jury list. The commissioners obtained the list of all persons registered to vote in the county in the last general election — 2,152 names. To assist in the identification of all the people on the list, the commissioners consulted with “three Negroes that [they] brought in to work with [them] one afternoon . . . .” From the list the commissioners eliminated 374 people for poor health and old age; 79 as under 21 years old; 93 as dead; 514 as away from the county most of the time but maintaining a permanent place of residence there; 48 who requested that they be removed from consideration; 225 about whom the commissioners could obtain no information; 33 as duplicated names; and 178 “as not conforming to the statutory qualifications for juries either because of their being unintelligent or because of their not being upright citizens.”

The process of elimination left 608 names. The commissioners arranged the names in alphabetical order and placed every other one on the list of potential jurors. At this point, for the first time, the commissioners classified the remaining 304 people by race: 113 were Negro, 191 white people. From this list the commissioners drew two-fifths of the names by lot for the grand-jury list; a check revealed 44 Negroes and 77 white people. The state superior court judge drew from this group nine Negroes and 23 white people by lot. He excused nine, leaving a 23-member grand jury of whom only six were Negroes. It was this grand jury that the District Court determined had been constitutionally impaneled.

After the February hearing of the District Court, and at that court's request, the commissioners classified by race the persons eliminated from the voter list in arriving at the 608 persons eligible for jury service. The classification revealed that 171 of those rejected as unintelligent or not upright were Negroes — 96% of the total removed for that reason. Although at the adjourned hearing the District Court recognized the potential for discrimination underlying the exclusion process, it did not reopen the matter following its receipt of the racial classification to consider the extraordinarily high percentage of Negroes eliminated as “unintelligent” or not “upright,” or the large number of persons about whom the commissioners said they could obtain no information even though they were registered to vote in the county.

The appellants insist the District Court has erred. They say that since the grand jury selects the board of education, the situation must be viewed as one involving a distribution of voting power among the citizens of Taliaferro County in the manner of a voting apportionment case. A grand jury with only about 25% Negro membership, they say, constitutes the school-board “electorate” in a county whose population is about 60% Negro. The State must offer a compelling justification, it is argued, in support of its “fencing out” such a substantial proportion of the potential Negro “electors” in the county.

We do not find it necessary to consider the appellants’ argument. Nor do we reach the premise upon which it rests — that the choice of the county board of education by the grand jury rather than delegates from local school boards turns the challenged procedure into an “election” for federal constitutional purposes. For we think that even under long-established tests for racial discrimination in the composition of juries, the District Court erred in its determination that the new list before it had been properly compiled.

The undisputed fact was that Negroes composed only 37 % of the Taliaferro County citizens on the 304-member list from which the new grand jury was drawn. That figure contrasts sharply with the representation that their percentage (60%) of the general Taliaferro County population would have led them to obtain in a random selection. In the absence of a countervailing explanation by the appellees, we cannot say that the under-representation reflected in these figures is so insubstantial as to warrant no corrective action by a federal court charged with the responsibility of enforcing constitutional guarantees..

Specifically, we hold that the District Court should have responded to the elimination of 171 Negroes out of the 178 citizens disqualified for lack of “intelligence” or “uprightness.” On the record as presently constituted, it is impossible to say that this purge of Negroes from the roster of potential jurors did not contribute in substantial measure to the ultimate underrepresentation. The retention of these 178 citizens might well have produced a jury list of at least an equal percentage of Negroes and white people, instead of the highly disproportionate list that actually materialized.

A second factor should have called itself to the District Court’s attention: the lack of information respecting the 225 citizens named on the county’s voting list but unknown to the jury commissioners or their assistants. Entirely apart from the question whether the commissioners’ failure to inquire into the eligibility of the 225 voters comported with their statutory duty to ensure that the jury list fairly represents a cross-section of the county’s intelligent and upright citizens, the court should not have passed without response the commissioners’ elimination from consideration for jury service of about 9% of the population of the entire county. In the face of the commissioners’ unfamiliarity with Negroes in the community and the informality of the arrangement by which they sought to remedy the deficiency in their knowledge upon recompiling the jury list, we cannot assume that inquiry would not have led to the discovery of many qualified Negroes.

In sum, the appellants demonstrated a substantial disparity between the percentages of Negro residents in the county as a whole and of Negroes on the newly constituted jury list. They further demonstrated that the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment rather than objective criteria. The appellants thereby made out a prima facie case of jury discrimination, and the burden fell on the appellees to overcome it.

The testimony of the jury commissioners and the superior court judge that they included or excluded no one because of race did not suffice to overcome the appellants’ prima facie case. So far the appellees have offered no explanation for the overwhelming percentage of Negroes disqualified as not “upright” or “intelligent,” or for the failure to determine the eligibility of a substantial segment of the county’s already registered voters. No explanation for this state of affairs appears in the record. The evidentiary void deprives the District Court’s holding of support in the record as presently constituted. “If there is a ‘vacuum’ it is one which the State must fill, by moving in with sufficient evidence to dispel the prima facie case of discrimination.”

II

The appellants also urge that the limitation of school-board membership to freeholders violates the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected this claim, finding no evidence before it “to indicate that such a qualification resulted in an invidious discrimination against any particular segment of the community, based on race or otherwise.” 290 F. Supp., at 652.

Subsequent to the ruling of the District Court, this Court decided Kramer v. Union Free School District, 395 U. S. 621, and Cipriano v. City of Houma, 395 U. S. 701. The appellants urge that those decisions require Georgia to demonstrate a “compelling” interest in support of its freeholder requirement for school-board membership. The appellees reply that Kramer and Cipriano are inapposite because they involved exclusions from voting, not from office-holding. We find it unnecessary to resolve the dispute, because the Georgia freeholder requirement must fall even when measured by the traditional test for a denial of equal protection: whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state objective.

We may assume that the appellants have no right to be appointed to the Taliaferro County board of education. But the appellants and the members of their class do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications. The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees.

Georgia concedes that “the desirability and wisdom of ‘freeholder’ requirements for State or county political office may indeed be open to question . . . .” But apart from its contention that prior decisions of this Court foreclose any challenge to the constitutionality of such “freeholder” requirements — a contention we think ill-founded — the sole argument Georgia advances in support of its statute is that nothing in its constitution or laws specifies any minimum quantity or value for the real property the freeholder must own. Thus, says Georgia, anyone who seriously aspires to county school-board membership “would be able to obtain a conveyance of the single square inch of land he would require to become a ‘freeholder.’ ”

If we take Georgia at its word, it is difficult to conceive of any rational state interest underlying its requirement. But even absent Georgia’s own indication of the insub-stantiality of its interest in preserving the freeholder requirement, it seems impossible to discern any interest the qualification can serve. It cannot be seriously urged that a citizen in all other respects qualified to sit on a school board must also own real property if he is to participate responsibly in educational decisions, without regard to whether he is a parent with children in the local schools, a lessee who effectively pays the property taxes of his lessor as part of his rent, or a state and federal taxpayer contributing to the approximately 85% of the Taliaferro County annual school budget derived from sources other than the board of education’s own levy on real property.

Nor does the lack of ownership of realty establish a lack of attachment to the community and its educational values. However reasonable the assumption that those who own realty do possess such an attachment, Georgia may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold. Whatever objectives Georgia seeks to obtain by its “freeholder” requirement must be secured, in this instance at least, by means more finely tailored to achieve the desired goal. Without excluding the possibility that other circumstances might present themselves in which a property qualification for office-holding could survive constitutional scrutiny, we cannot say, on the record before us, that the present freeholder requirement for membership on the county board of education amounts to anything more than invidious discrimination.

The judgment below is vacated, and the cause is remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.

       Ga. Const., Art. VIII, §V, ¶1, Ga. Code Ann. §2-6801 (1948). At the oral argument we were advised that under Georgia law a “freeholder” is any person who owns real estate.

        Ibid. See also Ga. Code Ann. §32-902 (1969).

       Ga. Code Ann. §§ 59-101, 59-106 (1965 and Supp. 1968).

       Ga. Code Ann. §59-101 (1965). Prior to 1966 the superior court judges were elected by all the voters in the State, but now they are elected by the voters of the circuits over which they have jurisdiction. See Ga. Const., Art. VI, § III, ¶ II, Ga. Code Ann. § 2-3802 (Supp. 1968); Stokes v. Fortson, 234 F. Supp. 575.

       In its brief Georgia informs us that its Department of Public Health estimates that Taliaferro County now has about 1,500 Negro and 1,000 white citizens. According to the 1960 federal census, the county had a population of 3,370, of whom 2,096 were Negroes and 1,273 white people. U. S. Dept, of Commerce, Bureau of the Census, 1960 Census of Population, Yol. I, Characteristics of the Population, pt. 12, Georgia, 12-83.

       This state of affairs has arisen following litigation attacking the county’s former dual school system. Prior to the fall of 1965 Taliaferro County had used one school building for Negroes and the other for whites. In that year, after 87 Negro pupils sought transfers to a desegregated school, the superintendent, knowing the white school would be closed, arranged for the transfer of the white pupils, at public expense, to public schools in adjoining counties. A three-judge District Court declared the arrangement illegal, placed the Taliaferro County school system in receivership under the State’s superintendent of schools, and instructed him to prepare a plan that would allow those Negroes who wanted to transfer to a desegregated school the opportunity to do so. Turner v. Goolsby, 255 F. Supp. 724. It is undisputed that some white pupils now attend a private institution in the county. In addition, the appellants suggest that white children continue to attend public schools in neighboring counties. Efforts to combine districts to avoid an all-Negro school system in Taliaferro County have proved unsuccessful.

       The District Court struck the grand jurors as parties defendant for failure of the appellants to state as against them a claim upon which relief could be granted. The appellants did not appeal from that portion of the judgment below, and the motion of the appellee grand jurors to dismiss the appeal as to them is granted.

       Georgia has used the voter registration lists rather than the books of the tax receiver since our decision in Whitus v. Georgia, 385 U. S. 545.

       The District Court found that the appellants’ claim that the board of education had deprived the Negro schoolchildren of textbooks, facilities, and other advantages failed for want of proof. The court also declined to reach the appellants’ claim for ancillary damages, leaving this question to single-judge inquiry. No issue concerning these rulings is presented on the appeal.

       We reject the appellees’ suggestion that we lack jurisdiction to entertain an appeal from the District Court on the theory that a court of three judges was not required under 28 U. S. C. §2281 because the appellants sought to enjoin only the acts of county officials. The jury commissioners and members of the board of education were “functioning pursuant to a statewide policy and performing a state function,” Moody v. Flowers, 387 U. S. 97, 102; cf. Spielman Motor Sales Co. v. Dodge, 295 U. S. 89, 92-95; and see Dusch v. Davis, 387 U. S. 112,114; Sailors v. Board of Education, 387 U. S. 105, 107. The appellants cannot be denied a three-judge court below and direct review here simply because Georgia chooses to denominate as “local” or “county” the officials to whom it has entrusted the administration of the challenged constitutional and statutory provisions. Rorick v. Board of Commissioners, 307 U. S. 208, 212; cf. City of Cleveland v. United States, 323 U. S. 329, 332.
      Under Georgia law Taliaferro County may replace the constitutional and statutory arrangement by which the grand jury elects the board of education with the direct election of the board by the qualified voters of the county upon the enactment of a local or special law by the legislature and its approval in a referendum by a majority of the qualified voters. Ga. Const., Art. VIII, § V, ¶ 2, Ga. Code Ann. § 2-6802 (Supp. 1968). But Georgia does not suggest that so many counties have taken advantage of this provision that the present selection of the board by the grand jury in effect amounts to a local option.
      The appellees also propose a distinction between attacks on statutes and attacks upon the results of their administration, and urge that the appellants’ case comes within the latter category. But this argument overlooks the line, delineated by our past decisions, that falls between a petition for injunction on the ground of the unconstitutionality of a statute, either on its face or as applied, which requires a three-judge court, and a petition seeking an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute not attacked as unconstitutional. Louisiana v. United States, 380 U. S. 145, 150 and n. 9; Query v. United States, 316 U. S. 486, 489; Ex parte Bransford, 310 U. S. 354, 361; Stratton v. St. Louis S. W. B. Co., 282 TJ. S. 10,15; Ex parte Hobbs, 280 U. S. 168, 172.
      Similarly, we reject the appellees’ contention, ancillary to their basic attack on our jurisdiction, that the three-judge court was improperly convened because of the insubstantiality of the appellants’ challenge to the Georgia laws. Swift & Co. v. Wickham, 382 U. S. 111, 115; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713, 715 (per curiam)] California Water Service Co. v. City of Redding, 304 U. S. 252, 255 (per curiam); Ex parte Poresky, 290 U. S. 30, 32 (per curiam). Further, the District Court properly entertained the question whether the constitutional and statutory complex, even if not invalid on its face, was unconstitutionally administered. Without regard to whether that issue was one by itself warranting a three-judge court, see Ex parte Bransford, supra; Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 37-50, it related to the appellants’ claim that Georgia’s school-board selection procedure was unlawful on its face. Flast v. Cohen, 392 U. S. 83, 90-91; Zemel v. Rusk, 381 U. S. 1, 5-6; United States v. Georgia Pub. Serv. Commission, 371 U. S. 285, 287-288; Paul v. United States, 371 U. S. 245, 249-250; Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73, 75-85; Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 303-304.

       Ga. Code Ann. §59-101 (1965).

       Ga. Code Ann. § 59-106 (Supp. 1968).

        Ibid.

      Our decisions in Avery v. Georgia, 345 U. S. 559, and Whitus v. Georgia, 385 U. S. 545, cannot aid the appellants. In Avery we reversed a judgment of conviction where the names of prospective petit jurors had been printed on differently colored tickets according to their race — white tickets for white people, and yellow tickets for Negroes. A state superior court judge drew the names from the jury box and handed them to the sheriff, who entrusted them to the court clerk for arranging the tickets and typing up the list of persons to be called to serve on the panel. We found that the use of the white and yellow tickets made it easier “for those to discriminate who are of a mind to discriminate,” and that even if the judge had drawn the names without looking to see the color of the tickets, “opportunity was available to resort to [discrimination] at other stages in the selection process.” 345 U. S., at 562.

        Whitus involved a refinement of the process we had condemned in Avery. In Whitus the jury commissioners made up the jury list from which both traverse and grand jurors were selected by reference to -the tax digest, which was segregated into sections — one with white sheets for white people and the other with yellow sheets for Negroes — and to an old jury list required by former law to be made up from the tax digest. We concluded that “[u]nder such a system the opportunity for discrimination was present,” and on the record before us we could not say that that opportunity “was not resorted to by the commissioners.” 385 U. S., at 552.
      In both Avery and Whitus we noted without comment the “upright and intelligent” requirement for jury membership. 385 U. S., at 552; 345 U. S., at 562. In Avery we expressly commented that Georgia law did not authorize the use of the potentially discriminatory process under review. 345 U. S., at 562. In both cases we struck down the white-and-yellow system, however varied in design, because of the obvious danger of abuse. See Williams v. Georgia, 349 U. S. 375, 382. We dealt in both cases with a physical, even mechanical, aspect of the jury-selection process that could have no conceivable purpose or effect other than to enable those so disposed to discriminate against Negroes solely on the basis of their race. It is evident that the challenged provisions now before us contain no such defect. The appellants cannot contend that the present requirements serve no rational function other than to afford an opportunity to state officials to discriminate against Negroes if they desire to do so.

       Indeed, at the oral argument before this Court, counsel candidly conceded: “There is no question but that Georgia’s jury selection statute is capable of being improperly administered. There is no question but that in Taliaferro County, Georgia, it has been misadministered.”

       Although Georgia grants the franchise to its citizens at 18, Gi. Const., Art. II, § I, ¶11, Ga. Code Ann. §2-702 (1948), jurors must be over 21, Ga. Code Ann. §59-201 (1965), and so the jury commissioners struck all persons under 21.

       At the adjourned hearing the superior court judge testified that he regularly excuses people from the traverse-jury lists as well as the grand-jury panel he draws in the courtroom. Whether the request to be excused was made in open court, in writing, or over the telephone, only the judge could excuse from grand-jury service those whose names he had drawn.

       It also appeared that 191 of those stricken for poor health and old age were Negro (51%); 71 of those under 21 (90%); 263 of those away from the county (51%); and three who asked to be relieved from jury duty (6%).

       See Sailors v. Board of Education, 387 U. S. 105, 106.

       Ga. Code Ann. § 59-106 (Supp. 1968).

       See Jones v. Georgia, 389 U. S. 24, 25 (per curiam); Coleman v. Alabama, 389 U. S. 22, 23 (per curiam); Avery v. Georgia, 345 U. S. 559, 562-563; Patton v. Mississippi, 332 U. S. 463, 468-469; Hill v. Texas, 316 U. S. 400, 405-406; Norris v. Alabama, 294 U. S. 587, 594-596, 598.

         Sims v. Georgia, 389 U. S. 404, 407; Whitus v. Georgia, 385 U. S. 545, 551; Eubanks v. Louisiana, 356 U. S. 584, 587; Hernandez v. Texas, 347 U. S. 475, 481-482; Avery v. Georgia, supra, at 561; Norris v. Alabama, supra, at 598; cf. Brown v. Allen, 344 U. S. 443, 481.

        Avery v. Georgia, supra, at 562; cf. Pierre v. Louisiana, 306 U. S. 354, 361-362; Norris v. Alabama, supra, at 594-595, 598-599.
      We reserve the question whether a State that for years has provided separate and inferior schools for Negroes may now disqualify them from jury service on the “impartial” ground of educational inadequacy, however defined. See Gaston County v. United States, 395 U. S. 285, 297.

       Georgia’s contention that no appellant has standing to raise this claim is without merit. The appellant Calvin Turner is a freeholder, but the appellant Joseph Heath is not. Heath’s motion to intervene was granted by the District Court for the express purpose of adding a party plaintiff to the case to ensure that the court could reach the merits of this issue. Georgia also argues that the question is not properly before us because the record is devoid of evidence that the freeholder requirement actually has operated to exclude anyone from the Taliaferro County board of education. But the appellant Heath’s allegation that he is npt a freeholder is uncontested, and Georgia can hardly urge that her county officials may be depended on to ignore a provision of state law.

         McGowan v. Maryland, 366 U. S. 420, 425-426; Kotch v. Board of River Port Pilot Commissioners, 330 U. S. 552, 556.

       Cf. Snowden v. Hughes, 321 U. S. 1, 7.

       Cf. Anderson v. Martin, 375 U. S. 399, 402, 404; Snowden v. Hughes, supra, at 7-8.

       Cf. Carrington v. Rash, 380 U. S. 89, 91; Lassiter v. Northampton County Board of Elections, 360 U. S. 45, 50-51; Pope v. Williams, 193 U. S. 621, 632.

       Language to such effect may be found in Strauder v. West Virginia, 100 U. S. 303, 310. But the passage relied upon by Georgia is no more than dictum. Later decisions invoking Strauder fall in the same category. Gibson v. Mississippi, 162 U. S. 565, 580; Neal v. Delaware, 103 U. S. 370, 386. Vought v. Wisconsin, 217 U. S. 590, is hardly apposite; there we dismissed an appeal for want of a meritorious question in a case where the appellant challenged a judgment of conviction arising from an indictment returned by a grand jury selected by commissioners required by statute to be freeholders.

       Cf. Leary v. United States, 395 U. S. 6, 32-36; Tot v. United States, 319 U. S. 463, 468.

       Cf. Carrington v. Rash, supra, at 95-96.


author: Per Curiam.

text:
    MOLINARO v. NEW JERSEY
    No. 663.
    Decided January 19, 1970

      Burrell Ives Humphreys for appellant.
   Per Curiam.

This case comes to the Court on appeal from the New Jersey state courts, which have affirmed appellant Moli-naro’s conviction for abortion and conspiracy to commit abortion. We are informed by both appellant’s counsel and counsel for the State that Molinaro, who was free on bail, has failed to surrender himself to state authorities. His bail has been revoked, and the State considers him a fugitive from justice. Under these circumstances we decline to adjudicate his case.

The Court has faced such a situation before, in Smith v. United States, 94 U. S. 97 (1876), and Bonahan v. Nebraska, 125 U. S. 692 (1887). In each of those cases, which were before the Court on writs of error, the Court ordered the case removed from the docket upon receiving information that the plaintiff in error had escaped from custody. In Smith, the case was dismissed at the beginning of the following Term. See 18 Geo. Wash. L. Rev. 427, 430 (1950). In Bonahan, the case was stricken from the docket on the last day of the Term in which it arose. See also National Union v. Arnold, 348 U. S. 37, 43 (1954); Eisler v. United States, 338 U. S. 189 and 883 (1949); Allen v. Georgia, 166 U. S. 138 (1897). No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims. In the absence of specific provision to the contrary in the statute under which Molinaro appeals, 28 U. S. C. § 1257 (2), we conclude, in light of the Smith and Bonahan decisions, that the Court has the authority to dismiss the appeal on this ground. The dismissal need not await the end of the Term or the expiration of a fixed period of time, but should take place at this time.

It is so ordered.

Mr. Justice Douglas concurs in the result.


author: Per Curiam. Mr. Justice Brennan,

text:
    MARYLAND AND VIRGINIA ELDERSHIP OF THE CHURCHES OF GOD et al. v. CHURCH OF GOD AT SHARPSBURG, INC., et al.
    No. 414.
    Decided January 19, 1970

      Alfred L. Scanlan, James H. Booser, and Charles O. Fisher for appellants.

      Arthur C. Lambert for appellees.
   Per Curiam.

In resolving a church property dispute between appellants, representing the General Eldership, and appellees, two secessionist congregations, the Maryland Court of Appeals relied upon provisions of state statutory law governing the holding of property by religious corporations, upon language in the deeds conveying the properties in question to the local church corporations, upon the terms of the charters of the corporations, and upon provisions in the constitution of the General Eldership pertinent to the ownership and control of church property. 254 Md. 162, 254 A. 2d 162 (1969). Appellants argue primarily that the statute, as applied, deprived the General Elder-ship of property in violation of the First Amendment. Since, however, the Maryland court’s resolution of the dispute involved no inquiry into religious doctrine, appellees’ motion to dismiss is granted, and the appeal is dismissed for want of a substantial federal question.

It is so ordered.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

concurring.

I join the per curiam but add these comments. We held in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 449 (1969), that “First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. . . . [T]he [First] Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.” It follows that a State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.

Thus the States may adopt the approach of Watson v. Jones, 13 Wall. 679 (1872), and enforce the property decisions made within a church of congregational polity “by a majority of its members or by such other local organism as it may have instituted for the purpose of ecclesiastical government,” id., at 724, and within a church of hierarchical polity by the highest authority that has ruled on the dispute at issue, unless “express terms” in the “instrument by which the property is held” condition the property’s use or control in a specified manner. Under Watson civil courts do not inquire whether the relevant church governing body has power under religious law to control the property in question. Such a determination, unlike the identification of the governing body, frequently necessitates the interpretation of ambiguous religious law and usage. To permit civil courts to probe deeply enough into the allocation of power within a church so as to decide where religious law places control over the use of church property would violate the First Amendment in much the same manner as civil determination of religious doctrine. Similarly, where the identity of the governing body or bodies that exercise general authority within a church is a matter of substantial controversy, civil courts are not to make the inquiry into religious law and usage that would be essential to the resolution of the controversy. In other words, the use of the Watson approach is consonant with the prohibitions of the First Amendment only if the appropriate church governing body can be determined without the resolution of doctrinal questions and without extensive inquiry into religious polity.

“[N]eutral principles of law, developed for use in all property disputes,” Presbyterian Church, supra, at 449, provide another means for resolving litigation over religious property. Under the “formal title” doctrine, civil courts can determine ownership by studying deeds, re-verter clauses, and general state corporation laws. Again, however, general principles of property law may not be relied upon if their application requires civil courts to resolve doctrinal issues. For example, provisions in deeds or in a denomination's constitution for the reversion of local church property to the general church, if conditioned upon a finding of departure from doctrine, could not be civilly enforced.

A third possible approach is the passage of special statutes governing church property arrangements in a manner that precludes state interference in doctrine. Such statutes must be carefully drawn to leave control of ecclesiastical polity, as well as doctrine, to church governing bodies. Kedroff v. St. Nicholas Cathedral, 344 U. S. 94 (1952).

       Md. Ann. Code, Art. 23, §§256-270 (1966 Repl. Vol.).

       The Maryland court reached the same decision in May 1968. 249 Md. 650, 241 A. 2d 691. This Court vacated and remanded the case “for further consideration in light of Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church 393 U. S. 528 (1969).

       Under the Watson definition, supra, at 722-723, congregational polity exists when “a religious congregation ... , by the nature of its organization, is strictly independent of other ecclesiastical associations, and so far as church government is concerned, owes no fealty or obligation to any higher authority.” Hierarchical polity, on the other hand, exists when “the religious congregation ... is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.”

         Id., at 722. Except that “express terms” cannot be enforced if enforcement is constitutionally impermissible under Presbyterian Church. Any language in Watson, supra, at 722-723, that may be read to the contrary must be disapproved. Only express conditions that may be effected without consideration of doctrine are civilly enforceable.

       Except that civil tribunals may examine church rulings alleged to be the product of “fraud, collusion, or arbitrariness.” Gonzalez v. Roman Catholic Archbishop, 280 U. S. 1, 16 (1929).

       Thus a State that normally resolves disputes over religious property by applying general principles of property law would have to use a different method in cases involving such provisions, perhaps that defined in Watson. By the same token, States following the Watson approach would have to find another ground for decision, perhaps the application of general property law, when identification of the relevant church governing body is impossible without immersion in doctrinal issues or extensive inquiry into church polity.

       See, e. g., Goodson v. Northside Bible Church, 261 F. Supp. 99 (D. C. S. D. Ala. 1966), aff’d, 387 F. 2d 534 (C. A. 5th Cir. 1967).


author: Per Curiam. Mr. Justice Harlan,

text:
    COWGILL v. CALIFORNIA
    No. 496.
    Decided January 19, 1970

      Melville B. Nimmer and Laurence R. Sperber for appellant.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Evelle J. Younger for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed.

Mr. Justice Harlan,

with whom Mr. Justice Brennan joins,

concurring.

While I am of the view this appeal should be dismissed, I deem it appropriate to explain the basis for my conclusion since the issue tendered by appellant— whether symbolic expression by displaying a “mutilated” American flag is protected from punishment by the Fourteenth Amendment — is one that I cannot regard as insubstantial. See Street v. New York, 394 U. S. 576, 594 (1969).

The record before us is not in my judgment suitable for considering this broad question as it does not adequately flush the narrower and predicate issue of whether there is a recognizable communicative aspect to appellant’s conduct which appears to have consisted merely of wearing a vest fashioned out of a cut-up American flag. Such a question, not insubstantial of itself, has been pretermitted in the Court’s previous so-called “symbolic speech” cases where the communicative content of the conduct was beyond dispute. See Tinker v. Des Moines School District, 393 U. S. 503 (1969); Gregory v. City of Chicago, 394 U. S. 111 (1969); Brown v. Louisiana, 383 U. S. 131 (1966); Bell v. Maryland, 378 U. S. 226 (1964); Garner v. Louisiana, 368 U. S. 157, 201 (concurring in judgment) (1961); West Virginia State Board of Education v. Barnette, 319 U. S. 624, 632 (1943); see generally Note, Symbolic Conduct, 68 Col. L. Rev. 1091 (1968). The Court has, as yet, not established a test for determining at what point conduct becomes so intertwined with expression that it becomes necessary to weigh the State’s interest in proscribing conduct against the constitutionally protected interest in freedom of expression.

While appellant contends that his conduct conveyed a symbolic message, the stipulated statement of facts on which this case comes to us suggests that the issue was not, in the first instance, determined as a factual matter by the trial court. Further, there is no indication that appellant either presented evidence on this question at trial or urged any standard at trial for determining that issue. I would therefore dismiss this appeal based on the inadequacy of the record for deciding the question presented. Rescue Army v. Municipal Court, 331 U. S. 549 (1947); DeBacker v. Brainard, ante, p. 28.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.

      Chief Justice Warren, writing for the majority in United States v. O’Brien, 391 U. S. 367, 376 (1968), said: “We cannot accept the view that an apparently .limitless variety of conduct can be labeled 'speech’ whenever the person engaging in the conduct intends thereby to express an idea.” The Court went on, however, to take judicial notice of the symbolic significance of draft-card burning which had become a recognized way of protesting the draft and American involvement in Vietnam.


text:
    MOSKOWITZ v. POWER et al.
    No. 770.
    Decided January 19, 1970

      Daniel G. Collins for appellant.

      Louis J. Lefkowitz, pro se, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Philip Kahaner and Robert S. Hammer, Assistant Attorneys General, for appellee the Attorney General of New York.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    BLINCOE et ux. v. WATSON, ASSESSOR, et al.
    No. 808.
    Decided January 19, 1970
   Per Curiam.

The motion to dispense with printing the jurisdictional statement is granted.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF PROVIDENCE v. LANGTON, TAX ADMINISTRATOR
    No. 288.
    Decided January 19, 1970

      Max Winograd for appellant.

      Herbert F. De Simone, Attorney General of Rhode Island, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.