District Judge (concurring specially).
I concur in the result reached by the majority here, but respectfully base my .action upon different grounds.
Since at least 1837, when the Supreme Court decided Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553, 9 L.Ed. 773, in an unbroken line of cases, that Court has refused to consider constitutional questions when the record discloses other grounds for decision, whether •or not they properly were raised by the parties. Some of the later cases reiterating this fundamental principle of judicial action are Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947) (which at 331 U.S. 568-575, 67 S.Ct. 1419-1423 sets forth .all of the cogent reasons for this policy); Peters v. Hobby, 349 U.S. 331, at 338, 75 S.Ct. 790, 99 L.Ed. 1129 (1955); Neese v. So. Ry. Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60 (1955); Clay v. Sun Insurance Office, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960) vacating judgment at 265 F.2d 522 (5 Cir.); and, most recently, Bush v. Texas, 372 U.S. 586, at 590, 83 S.Ct. 922, 9 L.Ed.2d 958, (decided March 25,1963).
In at least two decisions by this Court in recent years, this principle has been followed: Byers v. Byers, 5 Cir., 254 F.2d 205 (1958); and Lone Star Import, Inc. v. Citroen Cars Corp., 5 Cir., 288 F.2d 69 (1961), where it was said:
“ * * * Whatever may be the temptations — or the inability to resist them — in adjudicating ordinary matters either of fact or statutory construction courts are especially cautioned against the determination of constitutional questions not inescapably presented where some other basis less profound is actually available as a ground of disposition.
* * *»
Here, although mentioned in passing, and not the basis for the majority opinion, reference has been made to a simple legal ground upon which I think we ought to decree the nullity of the indictment under which appellant was convicted, without reaching the constitutional question.
LSA-R.S. 15:180 provides the method by which State grand juries shall be drawn:
“Immediately after completing the general venire list, the commission shall select therefrom the names of twenty citizens, possessing the qualifications of grand jurors, to be taken from different portions of the parish, as far as practicable, who shall be subject to duty as grand jurors during the term of six months after the grand jury is impaneled and until a succeeding grand jury shall have been impaneled.
“The names of the persons so selected shall be written on slips of paper, by the clerk, in the presence of the commissioners and they shall place the slips in an envelope, seal *437the same and indorse thereon the words: ‘List of Grand Jurors.’ ” (Emphasis supplied.)
It is to he noted that this statute expressly provides that the jury commission “shall” select the twenty persons from which the grand jury is drawn from the “general venire list” of 300 persons, provided for by LSA-R.S. 15:-179. The word “shall” is mandatory, as so used. The Louisiana Supreme Court lias held in two cases that where the Legislature, in establishing the method by which grand juries are to be drawn, uses “the word “shall,” such is mandatory, mot merely directory, language; and if mot followed literally, any indictments Teturned by such illegally constituted bodies are absolute nullities. State v. Kifer, 186 La. 674, 173 So. 169, 110 A.L.R. 1017 (1937) and State v. McLean, 211 La. 413, 30 So.2d 187 (1947).
In this case, as pointed out by the majority opinion, the jury commissioners violated the express, mandatory requirement of the statute in not selecting the 20 names from the “general venire list.” Instead they selected the names of 20 persons in addition to the three hundred on the general list. Therefore, having violated the State law, in my opinion, and according to the Louisiana jurisprudence, this indictment was a nullity. It is on that basis — -and that alone — that I respectfully, and with full deference to the majority, submit that we should base our ruling. It is a mistake, I feel, that the constitutional question is considered at all; and it is my further opinion, without elaborating,* that the majority *438is basing its constitutional ruling upon dicta in Cassell, since that case involved systematic exclusion, not inclusion of Negroes.
Otherwise, I fully agree with what the majority has said, and hereby enter my special concurrence.
It is difficult, indeed, to reconcile this Court’s present holding that there constitutionally can he no “conscious inclusion” of Negroes on jury lists with earlier statements by the Supreme Court, and by this Go-urt.
In Hill v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L.Ed. 1559 (1942), then •Chief Justice Stone, speaking for a unanimous Court, made the following statement at 316 U.S. 404, 62 S.Ct.:
“We think petitioner made out a prima facie case, which the state failed to meet, of racial discrimination in the selection of grand jurors which the equal protection clause forbids. As we pointed out in Smith v. Texas, supra, 311 U.S. 131 [61 S.Ct. 165, 85 L.Ed. 84], chance or accident could hardly have accounted for the continuous omission of negroes from the grand jury lists for so long a period as sixteen years or more. The jury commissioners, although the matter was discussed by them, consciously ■omitted to place the name of any negro on the jury list. They made no effort to ascertain whether there were within the county members of the colored race qualified to serve ■as jurors, and if so who they were. They thus failed to perform their •constitutional duty — recognized by •§ J of the Givil Rights Act of March 1, 1875, 8 U.S.G. § U, 8 U.S.G.A. § and fully established ■since the decision in 1881 of Neal v. Delaware, supra — not to pursue •a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds. Discrimination can arise from the action of commissioners who exclude all negroes whom they do not Jcnoio to be qualified and toho neither lenoto nor seelc to learn whether there are in fact any qualified to serve. In such a case discrimination necessarily results where there are qualified negroes available for jury service. * * * ” (Emphasis added.)
On May 30, 1962 (reh. den. June 29, 1962), in United States v. Wiman, 304 F.2d 53, at page 60, said:
“Prior to 1960, the Commissioners personally handed out the majority of the pink application cards (the remaining applicants came by the office), and they handed them out only one at a time to individuals whom they knew, although on one or two occasions Commissioner Allen thought he had asked a Negro minister for the names of qualified Negroes. The only sources of Negro applicants the Commissioners could name were the waiters at Morrison’s Cafeteria, the Negroes working at the downtown hotels, those at the shoe shine parlors, mail carriers, and a few they came in contact with through business. Commissioner Allen noted that they often choose names from the rosters of various organizations such as the Junior Chamber of Commerce or the Kiwanis Club. When asked if he had ever used the roster of a Negro club or association, he replied no, that no one had ever given him one. Both the *438Commissioners admitted that the bulk of their friends, social contacts, and acquaintances were white. On the basis of this evidence we see no sufficient effort to solicit the names of qualified Negroes beyond the admittedly narrow circle of ordinary contacts of the Commissioners." (Emphasis added.)
To say the least, jury commissioners are being placed in a virtually insoluble dilemma, where a constitutional jury-list may be an impossibility.