(dissenting).
Feeling that this decision is wrong, I cannot presume to speak for the Court. But in sounding this respectful dissent from the action of my Brothers who are no less sensitive than I to the compelling obligations of the Constitution, I would suggest that the Court itself is troubled by this decision.
Does the Court really mean to apply the absolute of Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 46, 52 L.Ed. 151? It is sweeping and unequivocal :
“In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.”
If this is the law, then why does not the opinion end with it? Why does the Court disavow any purpose to hold that it is a rule without exception ?1
Does the Court really determine that the question of alteration of municipal boundaries is a “political” matter and hence beyond the scrutiny of the Judiciary? If it means this, then why does it emphasize time and again that the discriminatory purpose does not appear on the face of the Alabama Act? If it is a “political” matter beyond judicial scrutiny, then what difference does it make whether the purpose is frankly stated or stealthfully concealed by artful sophistication ? 2
Does the Court mean to recognize that where the purpose of the Act is patent on its face the constitutional guaranty or prohibition is then sufficient to invest the Judiciary with a power to so declare by an effective order? If the Judiciary has the power to strike down what is plainly forbidden, what is there about the nature of the judicial process, traditional notions of separation of powers, or the doctrine of judicial abstention from “political” matters, that robs the Judiciary of its accustomed role of inquiry and ascertainment of legislative purpose ?
I do not find the answers to these questions in the Court’s opinion. I believe earnestly that analysis will demonstrate that satisfactory answers may not bo found either to them, or to others suggested by them. Like analysis will show, I think, that the courts are open to hear and determine the serious charge here asserted.
*600I.
Unlike the inherent ambiguity of a phrase like “due process” or “equal protection” found in the immediately preceding Fourteenth Amendment, the 34 words comprising the Fifteenth Amendment are plain. Their command is clear:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
The idea, implicit in the Court’s opinion that being a “political” matter the sanction of the constitutional guaranty is to be found in the self-imposed sense of responsibility of the individual states —here Alabama — is a denial of history.
“A few years experience satisfied the thoughtful men who had been the authors of the other two Amendments that, notwithstanding the restraints of those articles on the states, and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty and property, without which freedom to the slave was no boon. They were in all those states denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage.
“Hence the 15th Amendment, which declares that ‘the right of a citizen of the United States to vote shall not be denied or abridged by any state on account of race, color, or previous' condition of servitude.’ The negro having, by the 14th Amendment, been declared to be a citizen of the United States, is thus made a voter in every state of the Union.
“We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freemen and citizen from the oppression of those who had formerly exercised unlimited dominion over him. It is true that only the 15th Amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.” Butchers’ Benevolent Ass’n of New Orleans v. Crescent City Live-Stock Landing & Slaughter-House Co. (Slaughter-House Cases), 1873, 16 Wall. 36, 71-72, 83 U.S. 36, 71-72, 21 L.Ed. 394.
Tested in this light, these statements of the District Court are compelling indeed. As he declared, in dismissing Appellants’ complaint,
“Prior to the passage of Act No. 140, the boundaries of the municipality of Tuskegee formed a square, and, according to the complaint * * * contained approximately 5,397 Negroes, of whom approximately 400 were qualified as voters in Tuskegee, and contained approx-mately 1,310 white persons, of whom approximately 600 were qualified voters in said municipality. As the boundaries are redefined by said Act No. 140, the municipality of Tuskegee resembles a ‘sea dragon.’ The effect of the Act is to remove from the municipality of Tuskegee all but four or five of the qualified Negro voters and none of the qualified white voters. Plaintiffs state that said Act is but an*601other device in a continuing attempt to disenfranchise Negro citizens not only of their right to vote in municipal elections and participate in municipal affairs, but also of their right of free speech and press, on account of their race and color.” Gomillion v. Lightfoot, D.C.M.D.Ala., 1958, 167 F.Supp. 405, 407.
The conclusion and judgment of the District Court, which we have this day affirmed, is “that the complaint fails to .state a claim * * * upon which relief can be granted and that this Court does not have any authority or jurisdiction to declare void this particular duly enacted statute of the State of Alabama.” 3 167 F.Supp. 405, 410. Accordingly, the case must now be measured against the allegations of the complaint which categorically charges purposeful discrimination for race. For, as we have learned from Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed. 2d 80, “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” And for this purpose the complaint must be taken as true. Glus v. Brooklyn Eastern District Terminal, 1959, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed. 2d 770, 774.
Considering the procedural context in which this case now finds itself, the Court has permitted the Legislature of Alabama to simply abolish a substantial part of one of its cities, Tuskegee, and thereby disenfranchise all but four or five of its Negro citizens. Almost as anticipating the existence of this invincible power, the legislature is perhaps presently considering using it to eradicate the entire County of Macon.4
II.
Although to me this is an apt illustration of “burn[ing] the house to roast the pig,” 5 I agree with much of that said by the Appellees, the District Judge and the majority of this Court. Zoning and districting regulations are primarily for states. Voting regulations are primarily for states. As a general rule, the Constitution of the United States, the Congress, the Federal Courts, and the Executive Branch of the Federal Government are not concerned with such local matters.
This is not to say, however, as the Court’s opinion tends to conclude from the Hunter, Beckwith and Laramie *602Cases,6 that the Constitution imposes no limitation upon the actions of the states in these areas.
It is axiomatic that in a federal system the laws of the individual states cannot be supreme. For even in a field reserved expressly to the States or to the people it is the Constitution which assures that. The Constitution so prescribes. Article Six of the Constitution provides that “This Constitution * * * shall be the supreme Law of the Land; * * * any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Moreover, Alabama, like most states, requires that “All members of the legislature, and all officers, executive and judicial, before they enter upon the execution of the duties of their respective offices * * * ” must swear to “support the constitution of the United States * * * ” Ala. Const. Art. 16, § 279 (1901).
The nearly 360 volumes of the United States Reports are full of the historical story of the occasional conflict between what are in all other respects matters of wholly local concern, and some provision of the Constitution. Needless to say, whenever true conflict has in fact existed, the Constitution has always won out. There is no local matter which is not subject to potential examination for Constitutional defects. To list them all is the task of a case digest or encyclopedia, not a judicial opinion. But a few examples are helpful to illustrate the broad spectrum of constitutional concern.
A mere cursory examination of the following areas will show that they are all typically thought of as matters of nearly exclusive local control. And yet the footnotes indicate some of the familiar cases in which it was determined that, for some reason, the state or local government’s treatment was weighed and found constitutionally wanting: local education,7 transportation,8 and recreation9 facilities; athletic contests control;10 local housing developments;11 state taxation 12 and educational institutions;13 what are essentially state judicial procedure matters like admission to the state *603bar,14 appointment of counsel,15 enforcement of restrictive covenants,16 payment of filing fees 17 and furnishing of transcripts 18 for appeal, and the selection of jurors;19 and even a governor’s control of his state’s militia,20 and control of highway safety.21
One would be hard-pressed to find an area of “exclusive state action” which has or could not, in some way, by legislative design or administrative execution, be found to be violative of some constitutional provision. This has nothing to do with the occasional strife surrounding overlapping congressional and state legislation. No one here contends that Congress has the right to redistrict Tuskegee or prescribe the qualifications for voting in its municipal elections. But the fact that these are solely, or primarily, the initial concerns of Alabama alone does not mean that when it acts it may act without regard for the Constitution.
The Supreme Court expressed the standard in Cooper v. Aaron, note 7, supra, when they said,
“It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action.” (Emphasis supplied.) 358 U.S. 1 at page 19, 78 S.Ct. 1401, at page 1410 [3 L.Ed.2d 5 at page 17].
Of course, the same thing could be said of state regulation of voting and zoning.
In Sterling v. Constantin, note 20, supra, the Supreme Court was confronted with the contention that,
“ * * * the Governor’s order had the quality of a supreme and unchallengeable edict, overriding all conflicting rights of property and un-reviewable through the judicial power of the federal government.” 287 U.S. 378, at page 397, 53 S.Ct. 190 at page 195.
A contention, it might be noted, which is not altogether dissimilar from that advanced here as to the omnipotence of the Alabama legislature. The assertion was quickly disposed of by the Court in the very next sentence.
“If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Govern- or, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases, * * Id., at pages 397-398, 53 S.Ct. at page 195.
III.
Nothing in the Hunter, Beckwith and Laramie municipal redistricting cases, note 6, supra, primarily relied upon by the majority and the District Court, alters this view.
Indeed, in those very cases the Supreme Court acknowledged that some limitations were to be imposed upon the state’s action.
*604“Text writers concede almost unlimited power to the State Legislatures in respect to the division of towns and the alteration of their boundaries, but they all agree that in the exercise of these powers they cannot defeat the rights of creditors nor impair the obligation of a valid contract, [citations]
“Concessions of power to municipal corporations are of high importance; but they are not contracts, and, consequently, are subject to legislative control without limitation, unless the Legislature oversteps the limits of the Constitution.” (emphasis supplied.) Mount Pleasant v. Beckwith, note 6, supra, 100 U.S. 514, 533, 25 L.Ed. 699.
Moreover, they are not recent cases. Only one was decided in the Twentieth Century, and that over 50 years ago. Racial discrimination was in no way involved. The problems involved concerned property: higher taxes for the annexed city (Hunter), and the liability of a newly created county for the extinguished county’s debts (Beckwith and Laramie). Extravagant dicta, taken out of its property context, that “the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States” 22 should not now be spread, some 52 years later, to cover and control our determination of issues of a different, area, and of another era.23
IV.
Of course it is true that there are many and varied areas of potential controversy which the courts have held to be, for one reason or another, beyond the limits of judicial relief. These include, for example, the constitutional “guarantee tO' every State in this Union a Republican Form of Government” 24 (Art. IV, § 4), the congressional regulation of Indian tribes,25 the legislative and executive control of foreign relations, recognition of foreign governments, and the war powers,26 control of civilian and military ap*605pointing power,27 or for that matter, the inherent wisdom of any executive or legislative policy or specific action,28 as, for example, taxation.29
An outstanding illustration is the Supreme Court’s traditional reluctance to grant taxpayers relief against governmental action. As that Court declared in Commonwealth of Massachusetts v. Mellon, 1823, 282 U.S. 447, 487, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078, regarding a citizen’s attack upon a federal appropriation bill,
“His interest in the moneys of the treasury * * * is shared with millions of others * * *. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained. * * * The party who invokes the power [of courts to declare acts unconstitutional] must be able to show, not only that the statute is invalid, but that he * * * is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”
Such reasoning is hardly applicable here. Appellants’ complaint is not one “in common with people generally” — only those whose skin is black. And their suffering is not indefinite: one day voting citizens of Tuskegee, the next they have been deprived of both vote and village.
Nor do the two voter cases applying judicial abstention because the cases were political in nature either justify or compel a different result.
In Colegrove v. Green, 1946, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, Illinois citizens sought a redistricting of the state because of the gross inequality inherent in a range of population in congressional districts of from 112,116 to 914,000. The Court affirmed the dismissal of the complaint “because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination.” 328 U.S. 549, 552, 68 S.Ct. 1198, 1199, 90 L.Ed. 1432. Again, however, this case involved no consideration of racial issues. The conflict was between rural and urban Illinois, or political parties, not races. And, although some citizens only had one-ninth the vote of others, they were all still permitted to engage in the formality of balloting. It may also be noted that this was not a determination that the districting was constitutional, that the three dissenters felt that the Court should have decided the case, and against the constitutionality of the districting complained of, that Mr. Justice Rutledge’s concurring opinion expressed the view that the Court has the power to provide relief in such cases but that here “the cure sought may be worse than the disease,” 328 U.S. 549, 566, 66 S.Ct. 1198, 1209, 90 L.Ed. 1432, and that the opinion has come under some criticism. See, e. g., Lewis, Legislative Apportionment and the Federal Courts, 71 Harv.L.Rev. 1057 (1958).
*606A case of disenfranchisement of Negroes by redistricting has apparently never before arisen. But, as I shall point out in detail, the right of Negroes to vote equally with whites has been jealously guarded by the Supreme Court.
Even in Breedlove v. Suttles, 1937, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252, in which the Court found that Georgia’s poll tax did not deny any privilege or immunity of the 14th Amendment, the opinion notes that the otherwise complete freedom of a state to “condition suffrage as it deems appropriate” is “restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution * * 302 U.S. 277, 283, 58 S.Ct. 205, 208, 82 L.Ed. 252.
And although the brief per curiam in South v. Peters, 1950, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834, affirming the dismissal of a petition attacking Georgia’s county unit voting system for primary elections as violative of the Fourteenth and Seventeenth Amendments, harks back to Colegrove v. Green, supra, and the categorization of “eases posing political issues arising from a state’s geographical distribution of electoral strength among its political subdivisions,” 339 U.S. 276, 277, 70 S.Ct. 641, 642, 94 L.Ed. 834, it too, does not completely disenfranchise any citizen, is primarily concerned with the urban-rural conflict, and carries a strong dissent, that begins by acknowledging for all, “I suppose that if a State reduced the vote of Negroes, Catholics, or Jews so that each got only one-tenth of a vote, we would strike the law down.”
V.
When a racial discrimination voting issue is clearly posed the Court has evidenced little concern for judicial abstention in “cases posing political issues.”' Mr. Justice Holmes provided this frontal attack for the Court in the “white primary case” of Nixon v. Herndon, 1927, 273 U.S. 536, 540, 541, 47 S.Ct. 446, 71 L.Ed. 759 “The objection that the subject-matter of the suit is political is little more than a play upon words. Of course the petition concerns political action but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years * * *. States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that col- or cannot be made the basis of a statutory classification affecting the right set up in this case.” In Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 761, 88 L.Ed. 987, the Court acknowledged that, “Texas is free to conduct her elections and limit her electorate as she may deem wise, save only as her action may be affected by the prohibitions of the United States Constitution * * 321 U.S. 649, 657, 64 S.Ct. 757, 762, 88 L.Ed. 987, and then went on to note that, “the Fifteenth Amendment specifically interdicts any denial or abridgement by a state of the right of citizens to vote on account of color,” (Id.) and found the Texas white primary procedure unconstitutional. Its teaching was applied to strike down the Jaybird Association in Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. Mr. Justice Black reviewed many of the predecessor cases, took note of the fact that the Fifteenth Amendment has been held “self-executing” and declared:
“The Amendment bans racial discrimination in voting by both state and nation. It thus establishes a national policy, obviously applicable to the right of Negroes not to be discriminated against as voters in elections to determine public governmental policies or to select public officials, national, state, or local.” 345 U.S. at page 467, 73 S.Ct. at page 812.
Not only have the courts uniformly enforced Negro voting rights under the Constitution, but Congress pursuant to the constitutional mandate has for nearly 100 years specifically provided for judicial enforcement of civil rights by legislation.*60730 See, e. g., 18 U.S.C.A. §§ 241-243, 28 U.S.C.A. §§ 1343, 1443, 42 U.S.C.A. §§ 1981-1995.
It is of little significance that the Alabama Tuskegee redistricting act under consideration does not, as this Court so greatly emphasizes, demonstrate on its face that it is directed at the Negro citizens of that community. If the act is discriminatory in purpose and effect, “whether accomplished ingeniously or ingenuously [it] cannot stand.” Smith v. *608State of Texas, note 19, supra, 311 U.S. 128, 132, 61 S.Ct. 164, 166, 85 L.Ed. 84. Or, as the Court said in Lane v. Wilson, 1939, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281, another case of voting .discrimination “The Amendment nullifies sophisticated as well as simple-minded modes of discrimination.” Means of disenfranchising Negroes, like fraud, have historically been “as old as falsehood and as versable as human ingenuity.” Weiss v. United States, 5 Cir., 1941, 122 F.2d 675, 681, certiorari denied 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550. And “in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the farmers were not familiar.” United States v. Classic, 1941, 313 U.S. 299, 316, 61 S.Ct. 1031, 1038, 85 L.Ed. 1368.
VI.
The effect of the act is clear. The District Court so found. “As the boundaries are redefined by said Act No. 140, the municipality of Tuskegee resembles a 'sea dragon.' The effect of the Act is to remove from the municipality of Tuskegee all but four or five of the qualified Negro voters and none of the qualified white voters.” [167 F.Supp. 407].
Even if the procedural effect of a motion to dismiss for failure to state a claim — admission of allegations — is disregarded the sheer statistics alleged may demonstrate a prima facie purpose of discrimination.
It might well be, as was true in United States ex rel. Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d 71, that if Appellants were ever allowed the opportunity of a trial that “the naked figures [would themselves] prove startling enough.” 263 F.2d 71, 78. In that case, involving exclusion of Negroes from juries, the fact that 57% of the population of Carroll County, Mississippi was Negro and yet no county official “could remember any instance of a Negro having been on a jury list of any kind,” without refutation by the State of the reason for such a result was considered enough to prove systematic exclusion of Negroes from the juries of that county. This was the standard of proof of a prima facie case established by such cases as Norris v. State of Alabama, 1935, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, and Hernandez v. State of Texas, 1954, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. And in United States v. State of Alabama, 5 Cir., 1959, 267 F. 2d 808, this Court took note of the allegations that in Macon County, Alabama, the fact that 97% of the eligible whites were registered and only 8% of the 14,000 eligible Negroes resulted in the fact that whites could outvote Negroes nearly three to one and was at least some evidence, if not proof, of discrimination in registration. 267 F.2d 808, note 3. Perhaps the fact that in the present case the Act in question excludes 99% of the 400 Negro voters from the City of Tuskegee and yet not one single one of the 600 white voters will likewise be considered on the trial as proof enough of the discriminatory and unconstitutional purpose of the Act. But it is again well to point out that the adequacy of the proof in this case is not presently before us as we consider it on the basis of the complaint alone.
VII.
We need not be that “blind” Court that Mr. Chief Justice Taft described as unable to see what “all others can see and understand * * Bailey v. Drexel Furniture Co. [Child Labor Tax Case], 1922, 259 U.S. 20, 37, 42 S.Ct. 449, 450, 66 L.Ed. 817. Cited in United States v. Butler, 1936, 297 U.S. 1, 61, 56 S.Ct. 312, 80 L.Ed. 477; United States v. Rumely, 1953, 345 U.S. 41, 44, 73 S.Ct. 543, 97 L.Ed. 770; Uphaus v. Wyman, 1959, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090 (dissenting opinion 79 S.Ct. 1055). “[T]here is no reason why [we] should pretend to be more ignorant or unobserving than the rest of mankind.” Affiliated Enterprises v. Waller, 1 Terry 28, 1 Del. 28, 5 A.2d 257, 261. How it can be suggested that we should, for some reason, not make inquiry in this case is a mystery to me. Many cases could be cited but the most recent example will *609do. A little over a month ago, in deciding Harrison v. N. A. A. C. P., 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, the Supreme Court took note of the District Court’s findings that the acts there in question were passed “to nullify as far as possible the effect of the decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, (74 S.Ct. 686, 98 L.Ed. 873) * * * as parts of the general plan of massive resistance to the integration of schools of the state under the Supreme Court’s decrees.” 360 U.S. 167, 175, 79 S.Ct. 1025, 1030, quoting from N. A. A. C. P. v. Patty, D.C.E.D.Va.1958, 159 F.Supp. 503, 511, 515. The dissenting opinion notes the same findings, 360 U.S. 167, 182, 79 S.Ct. 1033, and refers to Guinn v. United States, 1915, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340, and the celebrated Alabama case of Schnell v. Davis, 1949, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093, affirming per curiam, D.C.S.D.Ala.1949, 81 F.Supp. 872. The “legislative setting” surrounding the statute in the latter case was also alluded to in another case decided the same day. Lassiter v. Northampton Election Board, 1959, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. In Guinn the Court observed that an Oklahoma “Grandfather Clause” statute could have “no discernible reason other than the purpose to disregard the prohibitions of the [Fifteenth] Amendment,” 238 U.S. 347, 363, 35 S.Ct. 926, 931, 59 L.Ed. 1340, although the statute did not specifically declare as its purpose the disenfranchisement of Negroes. The District Court opinion in the Schnell v. Davis case discusses the legislative background of an “understand and explain * * * the Constitution” registration requirement statute for three pages, 81 F.Supp. 872, 878-881, and concludes, at pages 880, 881:
“The defendants argue that the Boswell Amendment is not ‘racist in its origin, purpose or effect,’ but, as has already been illustrated, a careful consideration of the conditions existing at the time, and of the circumstances and history surrounding the origin and adoption of the Boswell Amendment and its subsequent application, demonstrate that its main object was to restrict voting on a basis of race or color. That its purpose was such is further illustrated by the campaign material that was used to secure its adoption. * * * We cannot ignore the impact of the Boswell Amendment upon Negro citizens because it avoids mention of race or color; ‘To do this would be to shut our eyes to what all others than we can see and understand.’ ”
And this Court has taken note that such inquiry into motive and purpose was a main theme of the Davis case. Orleans Parish School Board v. Bush, 5 Cir., 1957, 242 F.2d 156, 165.
Of course, here, as in Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, supra, the effect of the statute is not only a demonstration of its purpose but is enough to demonstrate its unconstitutionality standing alone. As Justice Black stated for three members of the Court,
“Whether that was due to negligence or was a wilful effort to deprive some citizens of an effective vote, the admitted result is that the Constitutional policy of equality of representation has been defeated.” 328 U.S. 549, 572, 66 S.Ct. 1198, 1212, 90 L.Ed. 1432.
VIII.
The District Court has quoted, and my Brothers have echoed, language from cases to the effect that legislative motive cannot be inquired into. E. g., Doyle v. Continental Ins. Co., 1876, 94 U.S. 535, 24 L.Ed. 148; Shuttlesworth v. Birmingham Board of Education, D.C.Ala.1958, 162 F.Supp. 372. It is necessary to ascertain precisely what they mean by this discussion and quotations. Of course, at this late date, to “overrule” the principle of statutory interpretation would be somewhat like overruling the principle of stare decisis — equally as impossible and undesirable. It is so firmly estab*610lished — and for so long — that a mere quotation from Corpus Juris Secundum is adequate to make the point.
“Since the intention of the legislature, embodied in a statute, is the law, the fundamental rule of construction, to which all other rules are subordinate, is that the court shall, by all aids available, ascertain and give effect, unless it is in conflict with constitutional provisions, or is inconsistent with the organic law of the state, to the intention or purpose of the legislature as expressed in the statute.” 82 C.J.S. Statutes § 321 (1953). (Emphasis supplied.)
What the Legislature of Alabama, as distinguished from its members, intended and what the purpose of the Legislature, as distinguished from its members, was in the enactment of this law is then a traditional matter for concern to the Judiciary. Obviously the Legislature of Alabama could have had the purpose of discriminating against Negro voters. Many states have had such purpose as the cases discussed in Part V, supra, attest. All that Doyle can mean is that in the judicial process of ascertaining legislative purpose and intention the individual motives 31 and expression of the individual members is not pertinent. But where the collective purpose and intention of the body is expressly stated or is ascertained on a trial by the exercise of traditional rules of statutory construction in the light of record facts, the judicial ascertainment and declaration of that purpose and intention, is not prohibited by the fact that individual legislators, either in legislative chambers or through the press, may have uttered statements of startling candor.
Of course, to say that “If the State has the power to do an act, its intention or the reason by which it is influenced in doing it cannot be inquired into,” Doyle v. Continental Ins. Co., supra, 94 U.S. 535, 541, 24 L.Ed. 148, quoted in Shut-tlesworth v. Birmingham Board of Education, supra, 162 F.Supp. 372, 381, is to beg the question. If the sole and exclusive legislative purpose is to deprive citizens of a state of their constitutional rights then the state does not have “the power to do [that] act.” Naturally, once this unconstitutional purpose is ascertained, and it is determined that the act is unconstitutional and beyond the power of a state legislature to enact, then it is unnecessary and unwise to try to find why the legislature harbored this purpose, to psychoanalyze them individually or collectively, and to try and verbalize the motive which prompted them to action.
This was recognized in Doyle, supra, when the Court made this almost self-defeating pronouncement: “The State of Wisconsin * * * is a sovereign State, possessing all the powers of the most absolute government in the world.” 94 U.S. 535, 541, 24 L.Ed. 148. That this “most absolute government in the world” was nevertheless subject to some restraints was acknowledged by the parenthetical phrase elipsed purposefully from the quotation just made that “(except so far as its connection with the Constitution and laws of the United States alters its position)” Wisconsin is an absolute sovereign state.
Doyle like Hunter is not really then an aid to decision. Each represents only *611the result once it has been concluded that the particular act does not offend the Constitution. Each is a sweeping generalization, the effect of which would be to supplant all constitutional guaranties if literally applied.
IX.
If the Courts are not open to perform the traditional judicial function of ascertaining legislative purpose and intent, then these appellants stand helpless before the law so that, as to the Fifteenth Amendment, in the memorable words of Chief Justice Marshall, “ * * * the declaration that the Constitution * * * shall be the supreme law of the land, is empty and unmeaning declamation.” M’Culloch v. Maryland, 4 Wheat. 316, 433, 4 L.Ed. 579, 608. The suggestion, implicit if not expressed, that “for protection against abuses by Legislators the people must resort to the polls, not to the Court.” Munn v. State of Illinois, 1877, 94 U.S. 113, 134, 24 L.Ed. 77; Williamson v. Lee Optical of Oklahoma, 1955, 348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563, is here unavailing.
For there can be no relief at the polls for those who cannot register and vote. Significantly the complaint in this case further alleged: “Macon County had no Board of Registrars to qualify applicants for voter registration for more than eighteen months, from January 16, 1956 to June 3, 1957. Plaintiffs allege that the reason for no Macon County Board of Registrars is that almost all of the white persons possessing the qualification to vote in said County are already registered, whereas thousands of Negroes, who possess the qualifications, are not registered and cannot vote.” It was this fact, incidentally, which gave rise to the necessity of the dismissal of a cause of action against the Board of Registrars of Macon County for discriminatory practices in registration. United States v. State of Alabama, 5 Cir., 1959, 267 F. 2d 808. In Macon County, of which Tuskegee is a geographical part, neither the Constitution nor Congress nor the Courts are thus far able to assure Negro voters of this basic right.
That this has occurred demonstrates, I think, that the Fifteenth Amendment contemplated a judicial enforcement of its guaranties against either crude or sophisticated action of states seeking to subvert this new right.
If the force of the ballot was to be the sole sanction for the effectual enforcement of the constitutional guaranty, it really created no right and imposed no prohibition. For all that a recalcitrant state need do is neglect the implementing of its own election machinery. If a Court may strike down a law which with brazen frankness expressly purposes a rank discrimination for race, it has — and must have — the same power to pierce the veil of sham and, in that process, judicially ascertain whether there is a proper, rather than an unconstitutional, purpose for the act in question.
The Court denies the existence of that power. The Constitution is left to a majority of the Alabama Legislature.
X.
As Mr. Justice Frankfurter has recently said elsewhere, “The problem represented by this case is as old as the Union and will persist as long as our society remains a constitutional federalism.” Irvin v. Dowd, 1959, 359 U.S. 394, 79 S.Ct. 825, 833, 3 L.Ed.2d 900. State Legislatures are accorded, and rightfully so, great respect and a far ranging latitude in their legislative programs. Occasionally there comes the time, however, when legislation oversteps its bounds. Then “it must * * * yield to an authority that is paramount to the State.” State of Wisconsin v. State of Illinois, 1930, 281 U.S. 179, 197, 50 S.Ct. 266, 267, 74 L.Ed. 799 (per Holmes, J.).
In such times the Courts are the only haven for those citizens in the minority. I believe this is such a time.
I respectfully dissent.
. “We find no necessity to declare the rule that a state legislature may do as it ■will in altering municipal boundaries unrestrained by any provision of the Federal Constitution to be a rule without exception. We think this case does not present the exception. We need not say, for our purposes here, that the2e may not be cases where courts can properly inquire as to whether a statute fixing boundaries transcends constitutional limits. We think this is not such a case.”
. As much is implied by the Court’s statement:
“The enactment by a state legislature of a statute creating, enlarging, diminishing or abolishing a municipal corporation is, as has bean noted, a political function. It is a governmental act. American Bemberg Corporation v. City of Elizabethton, 180 Tenn. 373, 175 S.W.2d 535. Hence it is an act of sovereignty performed under a power reserved by the Tenth Amendment. 81 C.J.S. States § 2, p. 858. This universally recognized sovereign power should not be restricted by prohibiting its exei'cise where, as an incidence of it, Negroes would be purposely excluded from the municipality and from participation in its affairs.”
The last sentence indicates that purposeful exclusion of Negroes has a “sovereign” or “political” immunity regardless of its patent or latent genesis.
. The District Court puts it squarely on tlio basis that the “court does not have any authority or jurisdiction.” Another thing still unclear in this Court’s opinion is whether it takes a like view or whether in the expression “the courts will not hold an act * * * to be invalid * * * ” this Court is to he understood as recognizing that it has the power to review — and exercising it — affirmatively finds the act within the constitutional prerogative of Alabama. The Court expresses its conclusion this way:
“Our consideration of what we regard to be the applicable rules of law leads us to the conclusion that, in the absence of any racial or class discrimination appearing on the face of the statute, the courts will not hold an act, which decreases the area of a municipality by changing its boundaries, to be invalid as violative of the Fourteenth and Fifteenth Amendments to the United States Consti-tation, although it is alloged that the enactment was made for the purpose, not appearing in the Act, and with the effect of excluding or removing Negroes from the City and depriving them of the privileges and benefits of municipal membership, including the right to vote in City elections.”
. An amendment to the Alabama Constitution providing that the legislature “may * * * by a majority vote of each house, enact general or local laws * * reducing the area of, or abolishing, Macon County * * * ” was introduced and passed by the 1957 session of the Alabama Legislature as Act No. 526, p. 720. It was subsequently submitted to a referendum, and approved, December 17, 1957. The Act is reported at 3 Race Rel. L.Rep. 357 (1958).
. Butler v. State of Michigan, 1957, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed. 2d 412 (per Frankfurter, J.).
. Hunter v. City of Pittsburgh, 1907, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151; Town of Mount Pleasant v. Beckwith, 1880, 100 U.S. 514, 25 L.Ed. 699; Commissioners of Laramie County v. Com’rs of Albany County, 1876, 92 U.S. 307, 23 L.Ed. 552, D.C., 167 F.Supp. 405, 408-409.
. Aaron v. Cooper (Cooper v. Aaron), 1958, 358 U.S. 5,1, 4, 78 S.Ct. 1399, 1401, 1410, 3 L.Ed.2d 3, 5, 17 (Little Rock); Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, Annotation 98 L.Ed. 882, 38 A.L.R.2d 1180; supplemental opinion, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; also companion case, Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (the original “school segregation cases”).
. Gayle v. Browder, 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, affirming per curiam, D.C.M.D.Ala., 1956, 142 F.Supp. 707 (Montgomery busses).
. Beal v. Holcombe, 5 Cir., 1951, 193 F. 2d 384, certiorari denied, 1954, 347 U.S. 974, 74 S.Ct. 783, 98 L.Ed. 1114 (golf course) ; City of Fort Lauderdale v. Moorhead, 5 Cir., 1957, 248 F.2d 544, affirming per curiam, D.C.S.D.Fla.1957, 152 F.Supp. 131 (same); New Orleans City Park Improvement Ass’n v. Detiege, 5 Cir., 1958, 252 F.2d 122 (park); Kansas City, Mo. v. Williams, 8 Cir., 1953, 205 F.2d 47, affirming, D.C.W.D.Mo., 1952, 104 F.Supp. 848, certiorari denied 1953, 346 U.S. 826, 74 S.Ct. 45, 98 L.Ed. 351 (swimming pool).
. State Athletic Commission v. Dorsey, 1959, 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028, affirming per curiam D.C.E.D.La.1959, 168 F.Supp. 149 [Judge Wisdom] (statute barring interracial athletic contests).
. Banks v. Housing Authority of City and County of San Francisco, 120 Cal. App.2d 1, 260 P.2d 668, certiorari denied 1954, Holcombe v. Beal, 347 U.S. 974, 74 S.Ct. 784, 98 L.Ed. 1114 (public low rent housing).
. Spector Motor Service, Inc. v. O’Connor, 1951, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573.
. Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (law school); State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (same).
. Konigsberg v. State Bar of California, 1957, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed. 2d 810; Schware v. Board of Bar Examiners, 1957 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.
. Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.
. Barrows v. Jackson, 1953, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, Annotation 97 L.Ed. 1602; Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441.
. Burns v. State of Ohio, 1959, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209.
. Griffin v. People of State of Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.
. Cassell v. State of Texas, 1950, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Smith v. State of Texas, 1940, 311 U.S. 128, 61 S.Ct. 1.64, 85 L.Ed. 84; United States ex rel. Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d 71.
. Sterling v. Constantin, 1932, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375; and see Cooper v. Aaron, note 7, supra.
. Bibb v. Navajo Freight Lines, Inc., 1959, 859 U.S. 520, 79 S.Ct. 962, 3 L.Ed. 2d 1003 (truck mud guard regulations).
. Hunter v. City of Pittsburgh, note 6, supra, 207 U.S. 161, 179, 28 S.Ct. 40, 52 L.Ed. 151.
. I make no apologies for the view that the business of judging in constitutional fields is one of searching for the spirit of the Constitution in terms of the present as well as the past, not the past alone. I find respectable authority in the words of Chief Justice Hughes in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 442, 54 S.Ct. 231, 242, 78 L.Ed. 413:
“It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning: ‘We must never forget, that it is a constitution we are expounding’ (McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579) ; ‘A constitution intended for ages to come, and, consequently, to be adapted to the various crises of human affairs.’ * * *. When we are dealing with the words of the Constitution, said this Court in [State of] Missouri v. Holland, 252 U.S. 416, 433, 40 S.Ct. 382, 64 L.Ed. 641, ‘We must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters * * *. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.’ ”
. Pacific States Telephone & Telegraph Co. v. State of Oregon, 1912, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377; Taylor v. Beckham, 1900, 178 U.S. 548, 20 S.Ct. 1009, 44 L.Ed. 1187; Luther v. Borden, 1849, 7 How. 1, 42, 48 U.S. 1, 42, 12 L.Ed. 581.
. Lone Wolf v. Hitchcock, 1903, 187 U.S. 553, 565, 23 S.Ct. 216, 47 L.Ed. 299.
. Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 588-589, 72 S.Ct. 512, 96 L.Ed. 586; Hirabayashi v. United States, 1943, 320 U.S. 81, 93, 63 S.Ct. 1375, 87 L.Ed. *6051774; United States v. Curtiss-Wright Export Corp., 1936, 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; Oetjen v. Central Leather Co., 1918, 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726; Neely v. Henkel, 1901, 180 U.S. 109, 21 S.Ct. 302, 45 L. Ed. 448; Kennett v. Chambers, 1852, 14 How. 38, 50-51, 55 U.S. 38, 50-51, 14 L.Ed. 316.
. Orloff v. Willoughby, 1953, 345 U.S. 83, 90, 73 S.Ct. 534, 97 L.Ed. 842.
. Trop v. Dulles, 1958, 356 U.S. 86, 114, 120, 78 S.Ct 590, 2 L.Ed.2d 630 (dissenting opinion).
. Commonwealth of Massachusetts v. Mellon, 1923, 262 U.S. 447, 487-488, 43 S.Ct. 597, 67 L.Ed. 1078.
. 18 U.S.C.A. § 241:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Oonstitution or laws of the United States, or because of his having so exercised the same; or
“If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise of enjoyment of any right or privilege so secured — ■
“They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.”
18 U.S.C.A. § 242:
“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”
18 U.S.C.A. § 243:
Providing that there shall be no discrimination in the selection of jurors and setting a $5,000 fine for violation.
28 U.S.C.A. § 1343:
“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
“(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;
“ (2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent;
“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
“(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.” (emphasis supplied)
Paragraph (4) added Sept. 9, 1957, 71 Stat. 637. Legislative history reported at 2 U.S.Code Cong. & Adm.News, pp. 1966, 1974 (1957).
28 U.S.C.A. § 1443:
“Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
“(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
“(2) Por any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.”
42 U.S.O.A. §§ 1981-1995
1981 (equal rights)
1982 (equal property rights)
1983 (action for deprivation of rights)
1984 (reviewable by Supreme Court)
1985 (action for conspiracy to interfere with civil rights)
1986 (action for failure to prevent interference)
1987 (officers may institute proceedings)
1988 (proceedings in conformity with common law)
1989 (additional commissioners)
1990 (penalty for failure to execute warrant)
1991 (provision for $5 fee for arrests)
1992 (President may request more speedy proceedings)
1993 (repealed)
1994 (peonage abolished)
1995 (new; fine and imprisonment for criminal contempt)
. For an interesting discussion of the distinction between inquiries into legislative “motive” and legislative “purpose” see N.A.A.C.P. v. Patty, D.C.E.D.Va.1958, 159 F.Supp. 503, 515 n. 6, vacated and remanded for consideration by Virginia courts, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152.
In ordinary usage the shadings of the three terms are subtle. Webster’s New International Dictionary (2d ed. 1954): Purpose: “That which one sets before himself as an object to be attained; the end or aim to be kept in view in any plan, measure, exertion or operation; design; intention.” Intention: “A determination to act in a certain way or to do a certain thing; purpose; design; as, an intention to go to Rome.” Motive: “That within the individual, rather than without, which incites him to action; any idea, need, emotion, or organic state that prompts to an action.”