(dissenting).
This is a companion case to No. 16,687, Sharp v. Lucky, 5 Cir., 252 F.2d 910, brought on the same day by the same attorney and decided on appeal by this Court at the same time. Much of the dissenting opinion I have filed in that case applies here. The two civil actions grew out of the same series of events.
In the present ease, the District Court wrote an opinion analyzing the facts and quoting pertinent portions of the authorities.1 The reasoning of that opinion is, to my mind, accurate and should be affirmed; and I dissent from the opinion of the majority in this case, based upon the opinion of the District Court, my dissent in the Sharp case, and these additional comments.
I.
(a) The only pleadings before the District Court were the complaint and the motion to dismiss which was based upon three grounds:
“(1) To dismiss this action on the ground that the court lacks jurisdiction over the subject matter.
(2) To dismiss this action on the grounds that the court lacks jurisdiction over the person.
(3) To dismiss the action because the complaint fails to state a claim against the defendant upon which relief can be granted.”
In support of ground No. 3, appellee filed one affidavit and appellant countered with two affidavits. The majority opinion deals only with ground (3).
(b) Grounds (1) and (2) supra challenged the jurisdiction of the District Court, and that question was present at the threshold and remained the first order of business throughout consideration of the case. There being no diversity of citizenship or other ground of jurisdiction claimed, i neither the District Court nor we have any jurisdiction of the case unless the complaint shows on its face a right to maintain the action under 28 U.S.C.A. § 1343 quoted by the majority opinion.
To state a claim under that statute a litigant is required to allege not only that state officials have treated him illegally, denying him the equal protection of its laws, but that such treatment was accorded him because of his race or col- *939or. The Constitution and the statutes relied upon by the majority all make this clear.
For example, the Fifteenth Amendment provides that the right to vote shall not be abridged by a state “on account of race, color, or previous condition of servitude.” 42 U.S.C.A. § 1971, which the majority says implemented that constitutional provision, contains like words, “without distinction of race, color, or previous condition of servitude * *
The basic Supreme Court decision applying these principles is Snowden v. Hughes, 1943, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497. No more accurate standard for decision in this case could be enunciated than to quote the language of that case. Snowden had been certified as one of the chosen candidates of the Republican Party in a state election by the County Canvassing Board. But the State Primary Canvassing Board refused to certify him as a candidate, and he brought suit under the same statutes as are here involved. What the Supreme Court said there controls this case:2
“The protection extended to citizens of the United States by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by state law. In re Slaughter-House Cases, 16 Wall. 36, 74, 79, 21 L.Ed. 394; Maxwell v. Bugbee, 250 U.S. 525, 538, 40 S.Ct. 2, 5, 63 L.Ed. 1124; Prudential Insurance Co. of America v. Cheek, 259 U.S. 530, 539, 42 S.Ct. 516, 520, 66 L.Ed. 1044; Madden v. Commonwealth of Kentucky, 309 U.S. 83, 90-93, 60 S.Ct. 406, 409, 410, 84 L.Ed. 590. The right to become a candidate for state office, like the right to vote for the election of state officers, Minor v. Happersett, 21 Wall. 162, 170-178, 22 L.Ed. 627; Pope v. Williams, 193 U.S. 621, 632, 24 S.Ct. 573, 575, 48 L.Ed. 817; Breedlove v. Suttles, 302 U.S. 277, 283, 58 S.Ct. 205, 208, 82 L.Ed. 252, is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause. * * *
“* * * Thg (jenjai alleged is of the right of petitioner to be a candidate for and to be elected to public office upon receiving a sufficient number of votes. The right is one secured to him by state statute and the deprivation of the right is alleged to result solely from the Board’s failure to obey state law. * * * There is no allegation of any facts tending to show that in refusing to certify petitioner as a nominee, the Board was making any intentional or purposeful discrimination between persons or classes. * * *
“* * * The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. * * * But a discriminatory purpose is not presumed, * * * there must be a showing of ‘clear and intentional discrimination,’ * * * But a mere showing that negroes were not included in a particular jury is not enough; there must be a showing of actual discrimination because of race. * * *
“The lack of any allegations in the complaint here, tending to show a purposeful discrimination between persons or classes of persons is not supplied by the opprobrious epithets ‘willful’ and ‘malicious’ applied to the Board’s failure to certify peti*940tioner as a successful candidate, or by characterizing that failure as an unequal, unjust, and oppressive administration of the laws of Illinois.
* * * Such allegations are insufficient under our decisions to raise any issue of equal protection of the laws or to call upon a federal court to try questions of state law in order to discover a purposeful discrimination in the administration of the laws of Illinois which is not alleged. * * *
“A construction of the equal protection clause which would find a violation of federal right in every departure by state officers from state law is not to be favored. * * *” [Emphasis supplied.]
Against that clear and unequivocal statement of the law the averments of the complaint ought to be laid. Since most of appellant’s brief consists of quoting from the complaint, we copy in the margin the portions of the complaint which the brief sets out in full, with the thought that it would be highly illogical not to assume that therein appellant has put his best foot forward.3 We have underscored the only allegation of the complaint copied in the brief which charges that the action taken was solely on the basis of race — “that the challenge was conducted wholly and solely on the basis *941of race. * * *” The complaint does not charge that appellee had any part in the challenging of appellant or any of the other Negroes mentioned; it is not even charged that she conspired with the challengers or acted in concert with them.4 The second specification of errors in appellant’s brief is that the District Court erred “in holding the registrar was required to accept the affidavit of Burdine and Feeback and legally could not have refused to accept it.” We repeat that the complaint and the argument of appellant do not intimate that appellee had anything to do with the challenge of these Negroes and whites.
(c) The majority seems content to act upon the thesis that jurisdiction was conferred and a federal action stated by appellant based on “her [i.e. appellee’s] own illegal failure to comply with the state law respecting the processing of such a challenge.” Following the quoted words, the majority opinion proceeds to point out several particulars in which ap-pellee failed to comply with state law: by failing to make proper publication and notice in the newspaper, by closing her office on May 12th, by refusing to process any more Negroes than she did even though hundreds stood around the office, and by striking the names of the Negroes from the voters’ roll. In no instance were any facts set forth sustaining the charge that these failures to comply with state law were practiced because plaintiff was a Negro, or that the same failures did not produce identical results with respect to white voters as well.
(d) This Court has consistently held that, where the effort is made to invoke the jurisdiction of a federal court under the civil rights statutes, it will assiduously strip the complaint of all mere conclusions and of allegations not factually supported.
Here is the language of McGuire v. Todd, 5 Cir., 1952, 198 F.2d 60, 63, cer-tiorari denied 344 U.S. 835, 73 S.Ct. 44, 97 L.Ed. 649:
“* * * as other courts have done, we disregard, as mere conclusions, the loose and general, the factually unsupported, characterizations of the complained of acts of the defendants, as malicious, conspiratorial, and done for the purpose of depriving plaintiffs of their constitutional rights; that the things defendants are alleged to have done, as distinguished from the conclusions of the pleaders with respect to them, do not constitute a deprivation of the civil rights of the plaintiffs, do not give rise to the cause of action claimed * * [Emphasis added.]
(e) The general statement quoted in the majority opinion that “she has abridged his privileges and immunities as a citizen of the United States and has denied him equal protection of the law * * * and is presently denying him and the class he represent [sic] the above enumerated rights all because they are members of the Negro race * * *” is so palpably a conclusion and a “loose and general * * * and factually unsupported characterization” that appellant did not even include it in the portion of the complaint copied in his brief. Every one of the cases enumerated in Footnote 4 supra contained almost identical generalizations, but this Court would not accept them because they were factually unsupported.
Such is certainly the case here. Everything appellee did which is alleged to have been in violation of state law affected whites and Negroes alike. The complaint not only fails to show anything appellee did against the Negroes which *942did not equally affect the whites, but the complaint affirmatively implies that some white people were prejudiced by appel-lee’s alleged illegal actions.
(f) It is important to keep in mind that the conduct of elections is a state matter regulated by state laws and conducted by state officials. The first time the Supreme Court had before it the statutory implementation of the Fourteenth Amendment5 as applied to voting rights, it used this language:
“The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. * * * It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted.”
At the following term of court, when called upon to deal with the Fifteenth Amendment, the Court, speaking again through Chief Justice Waite,6 used like language:
“The Fifteenth Amendment does not confer the right of suffrage on anyone. It prevents the States, or the United States, however, from giving reference, in this particular, to one citizen of the United States over another on account of race, col- or, or previous condition of servitude.”
And in Terry v. Adams, 1953, 345 U.S. 461, 467, footnote 2, 73 S.Ct. 809, 812, 97 L.Ed. 1152, the same idea was repeated :
“It appears that the right of suffrage is not a necessary attribute of national citizenship; but that exemption from discrimination in the exercise of that right on account of race, etc., is. The right to vote in the States comes from the States; but the right of exemption from prohibited discrimination comes from the United States.” 7
(g) Judged against the background of the standards set up and consistently followed by this Court, it is my opinion that the complaint was properly dismissed under grounds (1) and (2) swpra for failure to allege facts showing federal jurisdiction.
II.
In my opinion the District Court was also correct in holding that the relevant and material facts were undisputed, in testing the third ground of the motion to dismiss, failure to state a claim. The affidavits are to be subjected to the same tests as the pleadings. A large part of the majority opinion is devoted to a discussion of what it conceives to be questions of fact raised by the affidavits. The majority quotes Mrs. Lucky’s affidavits that “two bona fide registered voters of Ouachita Parish, Louisiana executed an affidavit before her challenging the registration of Dr. J. I. Reddix;” and Dr. Reddix’ response: “Said challenge was not made in compliance with the law on the subject and that affidavit was not executed before the defendant as alleged in her affidavit even though the same appears to have been signed by John J. *943Feeback and Wesley Burdine.” [Emphasis not supplied.] There is no dispute here of the crucial fact that the two registered voters did execute an affidavit challenging Dr. Reddix’ registration. What dispute these quotations reflect concerns an immaterial matter. If ap-pellee acted on an insufficient affidavit, she merely failed to perform duties imposed upon her by a valid state statute.8
The majority opinion then proceeds to enumerate inconsistencies between the two affidavits relating to such matters as whether the original challenge was immediately mailed to Dr. Reddix, whether publication was timely made, whether Negroes were “processed” after May 12th, and one or two other similar alleged inconsistencies. All of them, assuming that the affidavits do in fact conflict, relate to whether appellee performed the duties laid upon her by state statute. As stated, such failure, unless practiced against appellant because of his race, would not sustain a civil rights suit, and the conflict, if such there was, related to immaterial matters.
The majority opinion devotes several paragraphs to discussing whether the publication made by appellee was within the time prescribed by state statute. I am not able to follow this portion of the opinion. Even if it were material, I think that we ought to give great weight to the District Court’s finding that the Louisiana law was tracked. This is in line with the practice universally approved by the Supreme Court.9
*944III.
The majority opinion discusses at some length the failure of the court below to require appellee to answer certain interrogatories addressed to her by appellant under Rule 33 F.R.C.P. It is plain that the parties went to trial without asking any delay or making any point about this action of the court.10 The fact is that the interrogatories related to matters which would be fully disclosed by an examination of the books, and the books were proffered to appellant in open court during the trial. Moreover, appellant filed two affidavits which presented ex parte the chief items of evidence to which the interrogatories related. Finally, it would be a very rare ease where an appellate court would find that the trial court had abused its discretion in such routine matters as rulings on a party’s efforts at discovery. 4 Moore’s Federal Practice, Par. 33.27, pp. 2339-2340.
IV.
The majority expresses its stern disapproval of the whole episode described in the complaint and adverts to the fact that the District Court had been similarly outraged by it. But that is not the question involved. The question is one of jurisdiction whether appellant should vindicate his rights in a federal court or in a state court.11 Implicit in the vigorous language and the holding of the majority opinion is the thought that federal courts are wavering in their traditional attitude of abstention from intervening in matters properly within state competence, whether actual proceedings have been begun or not.12
Such an assumption is, in my opinion, wholly unjustified. Stefanelli v. Minard, 1951, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, was also an action under the statute here involved. That was an effort to procure from the federal court an injunction against the use in state proceedings of certain admittedly unconstitutionally obtained evidence. Citing Screws v. United States, 325 U.S. 91, 108, 65 S.Ct. 1031, 89 L.Ed. 1495; Collins v. Hardyman, 341 U.S. 651, 658, 71 S.Ct. 937, 95 L.Ed. 1253; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, and other cases, the Supreme Court used this language:13
“For even if the power to grant the relief here sought may fairly and constitutionally be derived from the generality of language of the Civil Rights Act, to sustain the claim would disregard the power of courts of equity to exercise discretion when, in a matter of equity jurisdiction, the balance is against the wisdom of using that power. * * *
*945“* * * Regardless of differences in particular cases, however, the Court’s lodestar of adjudication has been that the statute ‘should be construed so as to respect the proper balance between the States and the federal government in law enforcement.’ * * *
“ # * Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; * * ” 14 [Emphasis added.]
And this Court has steadfastly accorded to District Courts the discretion to refuse to take hold of a case under the Civil Rights Acts unless the compulsion towards such action was strong indeed. See Brown v. Board of Trustees of La-Grange Independent School District, 5 Cir., 187 F.2d 20, where we held that a court of equity had the discretion to dismiss a suit because the court was not equipped to operate a school system. And see also Illinois Central R. Co. v. Bullock, 5 Cir., 181 F.2d 851. While, therefore, I feel that the court below was correct in the reasoning of its opinion and the conclusion reached, and also that the complaint failed to state a case of which the federal court had jurisdiction, it seems to me too plain for argument that the court had the discretion to dismiss appellant’s action, and that we should not hold that its discretion was abused.
Rehearing denied: CAMERON, Circuit Judge, dissenting.
. Reddix v. Lucky, D.C.1957, 148 F.Supp. 108 et seq.
. The quotation brings together separated sentences from the decision appearing on pages 6-12 of 321 U.S., at page 400 of 64 S.Ct.
. Paragraph eight of the complaint reads as follows: “That the challenge was conducted wholly and solely on the basis of race and that if any white persons were challenged they were so few that the number would be of no consequence; that the defendant mailed more challenges than her office could accommodate and hundreds of Negroes never got into her office to answer the challenge; that the only investigation made of the Negroes status was a brief look at their registration card and therefore the investigation required by Louisiana Revised Statutes of 1950, Title 18, section 133 was never complied with; that proper publication and notice in the. newspaper and necessary delay was not allowed as provided by Louisiana Revised Statutes of 1950, Title 18, section 132; that hundreds of letters challenging the right of Negroes to remain on the rolls were never delivered and were returned to the office of the registrar even though they were correctly addressed; that hundreds of Negroes were denied certification by the registrar and/or her deputy on the basis they would have to produce three (3) bona fide registered voters from their precinct all in violation of Louisiana Revised Statutes of 1950, Title 18, section 132; that hundreds of Negroes were denied certification or the right to prove their right to remain on the rolls because their time had expired as provided by section 132 above quoted even though they had stood in line several days and could not get near the office because of the number of persons trying to answer their challenge; that the registrar closed her office on May 12, 1956 and refused to process any more Negroes even though hundreds stood around the office and continued to come back for the purpose of protecting their right to remain on the rolls; that for the several reasons in this paragraph stated plaintiff and twenty-five hundred (2500) other Negroes were disqualified to remain on the roll of registered voters by defendant.”
Paragraph nine of the complaint reads as follows: “That the office of the registrar closed on May 12, 1956 and that the last publication of names challenged appeared in the May 11, 1956 issue of the Monroe News Star, a clipping of said names being attached hereto and made a part of this petition and marked ‘exhibit A’ for purpose of identification; that plaintiff brings this action in his own behalf and that of the three thousand (3,-000) other Negroes so challenged and particularly on behalf of all persons named in exhibit ‘A’ attached hereto.’ ”
Paragraph ten of the complaint reads as follows: “That plaintiff in particular went to the office of defendant on May 15, 1956 at 10:30 A.M. and offered to answer the challenge but was refused by defendant on the basis that the books were closed; that because of the number of persons around her office daily trying to prove the correctness of their registration plaintiff could not get in the office before the above mentioned date even though he tried many times.”
Paragraph eleven of the complaint reads as follows: “That there was no reason to believe that plaintiff was illegally registered and he has been damaged by the aforesaid acts of defendant to the extent of Twenty-Five Thousand and No/100 ($25,000.00) Dollars.”
. A charge that has been made in bold language but rejected by us in the cases enumerated in this note because the effort to connect state officials with private citizens was set forth in the conclusions of the pleader without recital of the facts upon ivhich the conclusions were based: Charlton v. City of Hialeah, 5 Cir., 1951, 188 F.2d 421; Hewitt v. City of Jacksonville, 5 Cir., 1951, 188 F.2d 423; Whittington v. Johnston, 5 Cir., 1953, 201 F.2d 810; Yglesias v. Gulfstream Park Racing Association, 5 Cir., 1953, 201 F.2d 817; Dinwiddie v. Brown, 5 Cir., 1956, 230 F.2d 465, and Roark v. West, 5 Cir., 251 F.2d 956.
. Minor v. Happersett, 1874, 21 Wall. 162, 171, 88 U.S. 162, 171, 22 L.Ed. 627, construing the statute which is now 42 U.S.C.A. § 1983, being the statute most relied upon by appellant here.
. United States v. Reese, 1875, 92 U.S. 214, 217, 23 L.Ed. 563.
. See also United States v. Cruikshank, 1875, 92 U.S. 542, 555, 23 L.Ed. 588; United States v. Harris, 1882, 106 U.S. 629, 637, 1 S.Ct. 601, 27 L.Ed. 290; Logan v. United States, 1891, 144 U.S. 263, 286, 12 S.Ct. 617, 36 L.Ed. 429; McPherson v. Blacker, 1892, 146 U.S. 1, 38, 13 S.Ct. 3, 36 L.Ed. 869; and James v. Bowman, 1902, 190 U.S. 127, 138, 23 S.Ct. 678, 47 L.Ed. 979, and cf. Snowden v. Hughes, 1943, 321 U.S. 1, 7, 64 S.Ct. 397, 88 L.Ed. 497.
The cases dealing with the right to vote for federal office holders provided in the body of the Constitution itself have no application here.
. It is appropriate to pause to say that there is uo conflict between these two statements which is of such a nature as a court could accept as such. The affidavit of Dr. Reddix was required to be made upon his own personal knowledge. Ho could not possibly have known, especially under all of the facts sought to be set forth in his affidavit, when and before whom the affidavit was made. I quote from an opinion of this Court filed in the past few days, Alger v. United States, 5 Cir., 252 F.2d 519, 521: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein [quotation is from Rule 56(e) F.R.O.P.], * * * The inadequacies of this affidavit under the standard established by Rule 56(e) are too glaring to require much discussion.” An examination of the inadequacies there dealt with will show that they are not as glaring as those here involved.
To charge that appellee stated a deliberate untruth when she swore that the affidavit was made before her is to charge fraud of the worst sort. A charge of fraud, whether in a pleading or in evidence, must be established by evidence which is clear, positive and convincing. 37 C.J.S. Fraud § 114, p. 427 et seq. And see Prevost v. Gratz, 6 Wheat. 481, 498, 5 L.Ed. 311; United States v. City of Brookhaven, 5 Cir., 1943, 134 F.2d 442, 445, and Saenz v. Kenedy, 5 Cir., 1949, 178 F.2d 417, 419.
. No better statement of it has been found than that made by Mr. Justice Brandéis, dissenting in Railroad Commission of California v. Los Angeles Railway Corp., 1929, 280 U.S. 145, 164, 50 S.Ct. 71, 76, 74 L.Ed. 234, where he enumerates a number of eases so holding: “It is a serious task for us to construe and apply the written law of California. * * To ‘one brought up within it, varying emphasis, tacit assumptions, unwritten practices, a thousand influences gained only from life, may give to the different parts wholly now values that logic and grammar never could have gotten from the books.’ Diaz v. Gonzalez, 261 U.S. 102, 106, 43 S.Ct. 286, 288, 67 L.Ed. 550. This court is not peculiarly fitted for that work. We may properly postpone the irksome burden of examining the many relevant state statutes and decisions until we shall have had the aid which would be afforded by a thorough consideration of them by the judges of the District Court, who are presumably more familiar with the law of California than we are.”
The same principle of deference to the findings and conclusions of judges steeped in the law of a state has been announced in: Thompson v. Consolidated Gas Co., 1936, 300 U.S. 55, 74-75, 57 S.Ct. 364, 81 L.Ed. 510; Huddleston v. Dwyer, 1944, 322 U.S. 232, 237, 64 S.Ct. 1015, 88 L.Ed. 1246; Gardner v. State of New Jersey, 1946, 329 U.S. 565, 583, 67 S.Ct. 467, 91 L.Ed. 504, and General Box Co. v. United States, 1956, 351 U.S. 159, 165, 76 S.Ct. 728, 100 L.Ed. 1055.
. The Supreme Court has recently frowned upon the practice followed by some appellate courts of basing their decisions upon points not urged before the lower court, Barr v. Matteo, 355 U.S. 171, 78 S.Ct. 204, 2 L.Ed.2d 179.
. From unchallenged statement in the argument before us, we have learned that nine persons have suffered the penalty of the law in the state courts for their parts in the proceedings forming the subject matter of this complaint. We were advised also that more than one thousand white people had lost their right to vote; and the majority opinion recognizes that “perhaps some white voters” suffered the same privations as the Negroes. Of the former, the District Court was advised by Judicial Notice, Browder v. City of Montgomery, D.C.Ala. 1956, 146 F.Supp. 127.
. And cf. the statement in Morrison v. Davis, 5 Cir., 252 F.2d 102, 103: “Whatever may be the rule as to other threatened prosecutions, the Supreme Court in a ease presenting an identical factual issue affirmed the judgment of the trial court in the Browder ease in which the same contention was advanced. To the extent that this is inconsistent with Douglas v. City of Jeannette, Pa., 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, we must consider the earlier case modified.”
. The quotation is taken from pages 120, 121 and 122 of 342 U.S., pages 120 and 121 of 72 S.Ct.
. To the same effect are Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971; City of Chicago v. Fieldcrest Dairies, Inc., 1942, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; A. F. of L. v. Watson, 1946, 327 U.S. 582, 595-599, 66 S.Ct. 761, 90 L.Ed. 873, and Amalgamated Clothing Workers of America v. Richman Bros., 1955, 348 U.S. 511, 514-515, 75 S.Ct. 452, 99 L.Ed. 600.