(dissenting) :
In the opening bars, the Court1 sounds the theme of a clash between the indestructible union and the indestructible state. The tone of indestructibility is good. For history tells us that no political institution is indestructible. If it is to survive, it must save itself from destruction. It is the peril of destruction which is what this case is all about. For no state, and no nation, can survive if, professing democratic rule of the governed, it flagrantly denies the voting right through racial or class discrimination.
The resulting facts are not in dispute. Mississippi must candidly admit that no more than 5% of its adult Negro citizens are registered to vote. This means that public rule comes from the 67 % of white adults who are. The contest is whether this is the result of discriminatory state “Constitution, laws, customs, or usages” in violation of the Civil Rights Act, 42 U.S.C.A. § 1971(a).
That contest is a big one. It is no little controversy between one or more individual Negro voters and individual Registrars. It is between all Negro adults and the State. Indeed, it is between all citizens of the United States and the State. In that setting, it is fitting that the protagonists appear to be what they really are — the United States and the State of Mississippi. The decisive question is, therefore, whether the United States may maintain this suit and whether it may be maintained against the State of Mississippi. Once that is decided, nearly everything falls into place, or becomes a matter of superficial consequence.2 Once that is established, even the sketchy analysis enforced by time3 will demonstrate two things. First, in dismissing the complaints for failure to state a claim, F.R. Civ.P. 12(b), the majority ignores settled principles of federal procedure. Second, on application of correct principles, the Government’s complaint and the supplemental showing by answers to interrogatories is more than adequate to-demonstrate that the Government might prevail in whole or substantial part.
Such consideration of the constitutional attacks will also expose the ma*975jority’s fundamental misconception of the nature of the Government’s suit. It is not, as the majority repeatedly emphasizes, one attacking the statutes on their face. Nor is it one seeking relief because statutes valid on their face, and valid in fact, are being discriminatorily applied.
Discrimination is, to be sure, an important element of the Government’s thesis. But the discrimination sought to be proved, both in practice and in result, has a far greater function. For the Government’s theory — which it seeks an opportunity to establish factually— is simply this: The underlying Mississippi constitutional provisions and the implementing statutory law regulating registration of voters came into being— and are currently maintained — out of a purpose by the organized State to deny Negroes the right to vote by contriving a structure having the appearance of legality, but having known, built-in devices which would, and did, effectually deny or overwhelmingly discourage the Negroes’ effort toward full citizenship. The immediate means — the understanding test — must be judged, both in its purpose and in its effect, by the segregated policy of education and the wide disparity in the quality and quantity of education afforded by Mississippi to its white and Negro children. Likewise, these registration enactments must be -considered against the background of -official State action denying an effective use of voting rights by Negroes fortunate enough to be registered. One interesting facet of this Grand Design is the speed and apparent effectiveness of the State’s reflex to Federal Court decisions or congressional enactments which tend, or seem, to restore some small portion of the Negro citizens’ rights.
I.
The United States May Sue
As I read Part IX, the majority declares that this character of broad attack may not be brought by the United States because it has not been “expressly authorized to sue by Act of Congress.” 28 U.S.C.A. § 1345. To avoid some supposed constitutional restrictions on the right of the national sovereign to authorize itself to sue in its own Courts to protect the rights of its citizens, the majority reads 42 U.S.C.A. § 1971(c) and (d) narrowly. This leads to the conclusion that although Congress has authorized suits by the Government to protect identifiable individuals from actual or threatened discrimination by identifiable State officials in the administration of valid laws, the Government may not, under this statute, maintain a suit attacking the constitutionality of statutes or State constitutional provisions which bring about like discrimination, only wholesale. An odd reverse of the discarded notion that “The King Can Do No Wrong,” it is a declaration that an indestructible nation can right only little wrongs, not big ones.
There are a number of answers which may be briefly put. First, I can conceive of no constitutional hazard. The Fourteenth and Fifteenth Amendments are ample resources if specific legislation is required. I would have considerable doubt that specific legislation is needed. Jurisdiction, as such, while always a threshold question, is here of no moment. Whatever might be the affirmative grant of jurisdiction, it is clear that Congress has not prohibited such suits. The proviso of 28 U.S.C.A. § 1345 is thus irrelevant, and the balance of the section imposes no requirement that a suit “commenced by the United States” be expressly authorized by an Act of Congress. This latter requirement is confined to suits commenced “by any agency or officer” of the United States.4 *976Whether in a given situation the United States has standing to sue on behalf of citizens may present a problem. But it does not go to the jurisdiction of the Court as is here supposed. And as to standing to sue in vindication of fundámental, vital rights of citizenship of a kind which Congress recognizes may be vindicated at the behest of a private person,5 I join with Judge Wisdom in United States v. City of Jackson, Mississippi, 5 Cir., 1963, 318 F.2d 1, 14-16; 320 F.2d 870. I would hold that, apart from the Fourteenth”'Amendment, the Commerce Clause there, and the Fifteenth Amendment here, invest the national sovereign with the power to institute in its own Court appropriate judicial action “to promote the interest of all” by eradicating engrained official patterns of conduct which “collides with national policy as embodied in the Constitution.” In re Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092; 6 United States v. San Jacinto Tin Co., 1888, 125 U.S. 273, at 279, 8 S.Ct. 850, 31 L.Ed. 747; United States v. American Bell Telephone Co., 1888, 128 U.S. 315, 367, 9 S.Ct. 90, 32 L.Ed. 450; Sanitary District of Chicago v. United States, 1925, 266 U.S. 405, 425-426, 45 S.Ct. 176, 69 L.Ed. 352.
%fLBM§-£Í-íM?e.Problems exist here. Congress has laid dowiftEi" substantive standard in § 1971(a), has prescribed the machinery to effectuate such rights in § 1971(c) and has invested the District Courts with jurisdiction by § 1971 (d). Under this structure whenever “any person,” which includes the State, is enagaging “in any act or practice which would deprive any other person of any right * * * secured by subsection (a) * * * the Attorney General may institute * * * in the name of the United States, a civil action or other proper proceeding for preventative relief * * 7 Here, of course, it is categorically alleged that the State of Mississippi and the other named defendants are depriving adult Negro citizens, of Mississippi “who are otherwise qualified by law to vote” of their right to “be, entitled and allowed to vote * * * without distinction of race, color, * *.” Of course, the phrase “who are otherwise qualified by law to vote” is important. Injunctive relief or the benefits, of the referee machinery, § 1971(e), extend only to those “otherwise qualified.” But to read it as narrowly as does the majority would make the statute ineffectual and virtually useless. “Otherwise qualified” simply means that had; there been either (a) no invalid statu*977tory provision or (b) no discrimination in the application of a valid statute, the applicant would have fulfilled substantively all of the applicable legal requirements for voting.
Without a doubt the Government can be the adversary to champion the rights of its citizens who are the victims of state discrimination, United States v. Raines, 1960, 362 U.S. 17, 27, 80 S.Ct. 519, 4 L.Ed.2d 524, 533,8 and it may be done when the discrimination comes from rank partiality in administrative practices. United States v. Lynd, 5 Cir., 1962, 301 F.2d 818; 1963, 321 F.2d 26, cert. denied, 1964, 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416. But in the broad language authorizing the Government to institute “a civil action or other proper proceeding for preventive relief, including * * * a permanent or temporary injunction, * * * or other order,” there is no indication that Congress meant to impose any artificial restrictions because of the source of the discriminatory deprivation of voting rights. Discriminatory denial of voting rights, on a retail or wholesale basis, whether from discriminatory practice or invalid statutes, was to be attacked.
What is at stake is the right of disfranchised Negroes to parity of treatment so that the bare 5% of Negro registrants may approach equality with the 500,000 white registrants (67%). If— and to resolve that if a trial is sought— the disparity is due to discrimination,9 there is nothing in the statute to compel the Government to pursue the tortuous snail’s pace on behalf of individual voters in individual counties.
II.
The State of Mississippi May Be Sued
The majority’s conclusion that Mississippi may not be sued is a curious one. Beset by similar constitutional apprehensions, the majority — as it did in dealing with the right of the United States to sue — reads § 1971(c) narrowly to avert a declaration of unconstitutionality. But having done this, it comes out at the same place by holding that, the State being a perfect idealism, Congress may not constitutionally impute to it as its own act and deed the actions of its official representatives. Thus is § 1971 (c) 10 drummed out of the Act for all but that rare instance in which there are no personal officers to sue.
The statute is plain and for this case it is plainly constitutional. Two things are accomplished by § 1971(c). First, as a substantive matter, it declares that “any act or practice constituting a deprivation” of subsection (a) rights committed by “any official of a State or subdivision thereof” shall “be deemed that of the State.” Second, it provides a procedural remedy to enforce that substantive right. It does this by prescribing two things: (a) the “[s]tate may be joined as a party defendant”; and (b) if there is no person holding the office capable of being sued as a defendant to which the state may be joined, then “the proceeding may be instituted against the State.” (Emphasis supplied.) Thus there is no room, or need for, statutory construction to determine when a state may be joined with other defendants. *978.And assuming, as in Atkins and Ramsey,11 the District Court may sometimes refuse relief against the state at the end ■of the trial, this is no reason for throwing out the state before the trial even '.begins.
A state has no general immunity from •suit by the national sovereign. United States v. Texas, 1892, 143 U.S. 621, 642-646, 12 S.Ct. 488, 36 L.Ed. 285.12 And Congress can prescribe the forum in which the suit is to be commenced as it has done in § 1971(c) and (d). Case v. Boles, 1946, 327 U.S. 92, 97, 66 S.Ct. 438, 90 L.Ed. 552; United States v. California, 1936, 297 U.S. 175, 187, 56 S.Ct. 421, 80 L.Ed. 567; 28 U.S.C.A. § 1251 (b) (2).
The fact that in the brief per curiam .so heavily stressed by the majority, the Supreme Court in United States v. Alabama, 1960, 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982,13 did not affirmatively 'hold § 601 constitutional is a far cry from either a holding of unconstitution.•ality or an expressed apprehension on ■constitutionality. What, and all, it did was to foreclose the inference that, in remanding the case to permit trial against the State, the Court silently passed on the issue. But in both Dogan and Lynd14 the Fifth Circuit, emphasizing the wide nature of the relief afforded by § 1971 against voter discrimination, recognized that the remedy may run against the state as such.15 And the second State of Alabama v. United States, 5 Cir., 1962, 304 F.2d 583, aff’d, 1962, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112, is highly significant. After a trial on the merits following the remand by the Supreme Court pursuant to § 601, the District Court found discriminatory practices on the part of the voting registrars. Even though there were successor registrars as parties to the suit,16 the District Court rendered a decree against the State of Alabama. Additionally, on the basis of findings of discrimination, it declared that 54 specifically named applicants were to be registered. The Supreme Court affirmed this holding that the State was subject to orders against it and the form of relief granted was appropriate.17 Similarly, a *979direct injunction against the State of Mississippi was issued by the Fifth Circuit pending appeal in United States v. Lynd, 5 Cir., 1962, 301 F.2d 818, and affirmed after argument on the merits, 5 Cir., 1963, 321 F.2d 26.18
The majority’s conclusion of unconstitutionality rests on what may best be described as the Eleventh Amendment dialectic. Underlying this approach is the literal extension of the philosophic discussions of political economy of the kind found in Ex parte Young, 1908, 209 U.S. 123. 28 S.Ct. 441, 52 L.Ed. 714.19 (See Part V.) In this approach the State is regarded as an idealism, existing separate and apart from the human beings who carry out its functions, and wholly incapable of anything wrong or unlawful. Logically, when the State through the power of its instrumentality achieves an illegal, unlawful end, it has not been the State at all, merely individuals acting in excess of the maximum authority which might have been granted. This result then pushes the proponents into another fiction. Logically, of course, there would be no constitutional federal judicial redress against such “illegal” excesses since this would not be “State action” as the concept is used in the Fourteenth Amendment or in the implementing Civil Rights Acts. E. g., 42 U.S.C.A. §§ 1983, 1971(a). Consequently, Mississippi concedes and the majority holds that these actions, if unauthorized, constitute State action. But admitting that this is State action to allow redress against the transgressing individuals, thereby overcoming the bar of the Eleventh Amendment under the Ex parte Young doctrine, the majority insists that it is not State action so as to be imputed to the State where Congress, unfettered by the Eleventh Amendment, expressly provides for suit by the national sovex*eign against the State.
Were this the inevitable consequence of fictions — useful as they are for solutions of some of the law’s formal incongruities, cf. Douglas, J., dissenting in Parker v. Ellis, 1960, 362 U.S. 574, 595, 80 S.Ct. 909, 4 L.Ed.2d 963 — a good deal of judicial history would have to be erased. Worse, it would close the courthouse to the resolution of conflicts between the national and state governments whether they concern ownership of offshore tidelands, United States v. Texas, 1950, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221, or interference with the orders of a Federal Court.20
This is not the case in which ordinary actions of Government officials perhaps in excess of authority are sought to be imputed to the State to make the State directly responsible therefor. Here the actions taken by individuals relate to a function which is governmental in nature and wholly unrelated to private, pei'sonal *980activity. For here every action relates to the elective process. Under no circumstances could any official, high or low, involved in the registration-elective process be regarded as a private person. Each “ * * * takes its character as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by * * * ” a private person, Smith v. Allwright, 1944, 321 U.S. 649, 658, 663, 64 S.Ct. 757, 88 L.Ed. 987; Terry v. Adams, 1952, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152; Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780, 790; 1961, 287 F.2d 750, at 754-755, n. 9; Boman v. Birmingham Transit Co., 5 Cir., 1960, 280 F.2d 531, 535. By their structure and express provision, the Mississippi voter statutes reflect that the action of all is that of the State and the State alone.21
These principles are more than ordinarily applicable if the basic theory of the Government’s suit is kept carefully in mind. Unlike those charging that Negro voters are deprived of constitutional rights because of discrimination in the administration of otherwise valid statutes, the thesis is here that these voter registration laws (and Constitution) are themselves invalid because, in their setting, they established a structure which was intended to, and in fact did permit effectual denial to the Negro of the right to vote, the final proof of which, being in the pudding’s eating, is the disparate results of 67% vs. 5%. On such a theory, it is conceptually impossible for statutes (and constitutional provisions) to be anything other than State actions, as the State, by the State, and for the State. Everything under attack here— the understanding test, promulgation of the registration application form, the duty to fill it out without assistance, prohibition against advice concerning errors, the good moral character test, the right of citizen challenge — are all strictly prescribed in the Mississippi Constitution and statutes. Acts done thereunder are truly acts of the State, not merely State actions by individual persons.
Substantively, there can at this late date be no question of the constitutional power to charge the State directly for denial of voter rights accomplished by the statutory structure or its administration. Under § 1971(a) the right is guaranteed to vote without distinction of race “ * * any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.” Discriminatory State Constitutions and laws which were found to be unconstitutional in themselves have been voided by the Supreme Court pursuant to this subsection.22 Guinn v. United States, 1915, 238 U.S. 347, 355-356, 35 S.Ct. 926, 59 L.Ed. 1340; Myers v. Anderson, 1915, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349.
The rich experience in voter discrimination affords an ample basis for the conclusion that there is a reasonable connection between the congressional determination that in voting suits, the acts of local representatives of government may be deemed to be the acts of the State on the one hand, and the rights to be secured under the Fourteenth and Fifteenth Amendments on the other. The scope of congressional power under the Fourteenth and Fifteenth Amend*981ments is surely broad enough for the adoption of any remedial legislation “necessary and proper for counteracting such laws as the states may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceeding as the states may commit or take, and which by the amendment they are prohibited from committing or taking.” Civil Rights Cases, 1883,109 U.S. 3, 14, 3 S.Ct. 18, 27 L.Ed. 835.
III.
Majority Applies Incorrect Standards for Dismissal
"While professing to follow the standards epitomized in Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80,23 the majority commits a basic procedural error. It subjects the Government’s complaint to tests no longer appropriate under the Federal Rules of Civil Procedure.
The majority is preoccupied with two things, each contrasting the other. Its approach emphasizes that the allegations must be of facts, as distinguished from legal conclusions. This becomes vital to its thesis since technically it is said the motion to dismiss admits only facts well pleaded.24 But F.R.Civ.P. 8(a) (2) does not require that facts be pleaded, only that the complaint “shall contain * * (2) a short and plain statement of the claim showing that the pleader is entitled to relief * * Professor Wright points out that a
“Claim for relief stated in general terms and legal conclusions may be sufficient to inform the adversary and to withstand a motion to dismiss ; * * * the sufficiency of a claim so stated is not tested by the strict standards once applied to determine whether a ‘cause of action’ was sufficiently stated.” 1A Barron & Holtzoff, Federal Practice and Procedure § 356, at 360 (Wright ed. 1960).
But I do not press this as a technical principle because the complaint charges discriminatory purpose and effect in the most positive, direct and simple terms. For example, after reciting factual, statistical and historical details in the first 15 paragraphs, it charges that “one of the chief purposes” of the newly adopted Constitution of 1890, “* * * was to restrict the Negro franchise and to establish and perpetuate white political supremacy and racial segregation in Mississippi.” This was accomplished, the complaint charges, through the understanding clause. The complaint goes on to allege that later, under the stimulus of a decision of the Fifth Circuit25 which construed Article 244, the “read or understand” provision, disjunctively and the 1954 school decision, an amendment was adopted requiring ability to read and understand. The effect of this was to subject the vast body of unregistered adult Negroes (numbering over 475,000) to new and stringent requirements to which the mass of white voters (numbering 500,000) had not been subjected. This amendment, it is alleged, was “designed to perpetuate in Mississippi white political supremacy, a racially segregated society, and the disenfranchisement of Negroes.”
*982Similarly, in the “fourth claim” the complaint recites in detail the 1960-1962 efforts of the Government through the Federal Court proceedings to obtain voter registration records in Mississippi, and in other proceedings to enjoin discriminatory practices, chiefly in Forrest County 26
After factually alleging developments in the court proceedings, the complaint goes on to state that to overcome specific provisions of the Fifth Circuit’s injunctive order — especially those requiring assistance to Negro applicants on an equality with whites — the Mississippi Legislature enacted a package of laws.27 These are alleged to be unconstitutional for a number of specific reasons. These include the unreasonable, arbitrary disqualification for formal, technical, inconsequential errors, “freezing in” white voters while “freezing out” unregistered Negroes by more stringent standards and requiring publication of the names of applicants, thus subjecting Negroes to harassment28 by whites, etc.
Of course these serious charges cannot be brushed off as “legal conclusions.” The majority takes a double tack to circumvent them. The first seems to be that the truth of these charges — i. e., discriminatory purpose and effect — is of no legal consequence since this goes to the motivation of legislation and this is a subject free from judicial scrutiny. If — and the if is a very tiny one — that ever were the law, Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, now makes it clear that unconstitutional racial discrimination gets no cloak of judicial immunity simply because the means used is State legislation. The supposed “motivation” of the legislators is no haven and affords no insulation from judicial inquiry.
The second seems to be that, assuming them to be legally significant, there are no possible evidentiary ways of establishing the truth of the charges. The majority reasoning in this facet seems to run this course. The Government by pretrial interrogatories from the defendants was required to state the exact factual basis for these charges, the witnesses to be used on the trial in support thereof, etc. The Government filed detailed responses and presumably put its best foot forward. Consideration of these materials by the Court reveals that these “facts” cannot be established since all of this is either hearsay or otherwise inadmissible.29 In other words, the majority in concluding that no claim is set forth looks to interrogatories to establish that no claim can be proved. But on a motion to dismiss 30 under F.R.Civ.P. 12(b) (6), this may not *983be done. Mullins v. De Soto Securities Company, 5 Cir., 1943, 136 F.2d 55; Kohler v. Jacobs, 5 Cir., 1943, 138 F.2d 440; 2A Barron & Holtzoff § 778, at 391.
This is far from saying, however, that the interrogatories are irrelevant at this .stage. Quite to the contrary, once the proper standard is applied, these become the best proof that the Government has at least an arguable basis for establishing its claim on a trial. This brings us to the simple standard of Conley v. Gib-ison 31 that “the accepted rule” is “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.” Of this problem, the Fifth Circuit has said, "“[F]inal disposition of a civil action on •the basis of bare bones pleading is a tortuous thing. How a standard so simply •expressed, so often repeated, is apparently so often overlooked * * * is hard ■to understand. * * * We have phrased it and rephrased it in these terms. * * A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his •claim * * * ’ Des Isles v. Evans, 5 Cir. (1952), 200 F.2d 614, 615 * * * ” Arthur H. Richland Co. v. Harper, 5 Cir., 1962, 302 F.2d 324, 325. Of course the principle is a series of negatives, each of which the movant (Mississippi) had to overcome. The complaint [1] “should not be dismissed * * * unless” [2] it is made to appear “beyond doubt” that the plaintiff [3] “can prove no set of facts” entitling him to relief. Apart from the notion of immunity of legislative motivation, now thoroughly discarded by Gomillion v. Lightfoot, supra, nothing in the majority opinion even remotely reveals how the defendants ear-ried this burden. But I need not rest on concepts of burden since these interrogatories establish firsthand in great factual detail historic materials from which a trier can infer that these legislative-constitutional provisions came into being to provide the mechanism by which the Negro would be denied the right to vote and how — faithful to its conception — it has worked- so well to achieve the present startling disparity. Testing the complaint from the restricted vantage of a motion under F.R.Civ.P. 12(b), the Court cannot at this stage make a blanket ruling against the admissibility of all of this material. Indeed, all, or nearly all, will be plainly admissible under the liberal approach of F.R.Civ.P. 43(a). Dallas County v. Commercial Union Assurance Co., 5 Cir., 1961, 286 F.2d 388; Monarch Ins. Co. of Ohio v. Spach, 5 Cir., 1960, 281 F.2d 401; 32 Hall v. St. Helena Parish School Board, E.D.La., 1961, 197 F.Supp. 649, aff’d mem., 1962, 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521; Davis v. Schnell, S.D.Ala., 1949, 81 F.Supp. 872, aff’d mem., 1949, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093; Morris v. Harmer’s Heirs’ Lessee, 1883, 32 U.S. [554] 348, 351 (7 Pet.) 8 L.Ed. 781 (per Story, J.).
IV.
Abundant Likely Evidence to Establish Prima Facie Case
A consideration of a very small part of the material will illustrate the substantial basis for the Government’s claim. This material both acquires a meaning from its setting and offers additional proof of that setting. This is vital as the Supreme Court, analyzing the holding in Davis v. Schnell, S.D.Ala., 3-Judge (81 F.Supp. 872, 1949, aff’d mem., 1949, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093) which struck down an “understanding and explain” test had this to say. “The *984legislative setting of that provision and the great discretion it vested in the registrar made clear that a literacy requirement was merely a device to make racial discrimination easy.” Lassiter v. Northampton County Bd. of Elections, 1959, 360 U.S. 45, 53, 79 S.Ct. 985, 3 L.Ed.2d 1072. Of course a part of that setting is what the Fifth Circuit has described as the Mississippi “steelhard, inflexible,, undeviating official policy of segregation.” United States v. City of Jackson, Mississippi, 5 Cir., 1963, 318 F.2d 1, 5. The policy takes many forms. It “is-stated in its laws.33 It is rooted in custom.” 34
*985The historical materials reveal that a policy so open, so frank, so candid did not .accidentally pass by the voter problem. The Fifteenth Amendment, with its plain prohibition, posed difficulties. But a way was found to make segregation complete and total. This was to be accomplished through a number of steps.35
Discriminatory Purpose of 1890 Constitution
On February 5, 1890, Mississippi Legislature called for a constitutional convention to revise the Constitution of 1869.36 Although more than 50% of the population of Mississippi was negro, only •one of the 134 delegates elected to the ■Convention was a Negro. The Convention opened on August 12, 1890, and by November 1 adopted a new Constitution. Under the 1869 Constitution, all males over the age of 21 years, registered to vote, resident in the State six months •and not disqualified by insanity, idiocy, ■or conviction of certain crimes were eligible.37 The significant changes in the 1890 Constitution were residence for two years, payment of taxes including the annual poll tax, and a requirement that the applicant be able to read or understand any section of the State Constitution.38
The Negroes’ presence in the State posed a real problem. Constituting 53.-7% of the' population in 1870, the Negroes represented 57.6% in 1890. Whites were in control throughout the State, but not without some difficulties which one of the delegates described as “preserving the ascendency of the white people by revolutionary methods” consisting, “in plain words” of “stuffing ballot-boxes * * * carrying the elections by fraud and violence until the whole machinery for elections was about to rot down.” Anticipating the Convention, Senator George outlined its work. “Our first duty”, he is reported to have said, “is to devise such measures, consistent with the Constitution of the United States, as will enable us to maintain a home government, under the control of the white people of the state.”
From the opening note of the Convention, the theme was the single one. President of the Convention, Calhoon, described the race for racial supremacy as “one of the problems you have to encounter” and their challenge was to so arrange “this ballot system * * * as to effect one object.” He was soon to spell that out. The temper of the Convention was reflected by the Resolution of the Preamble Committee. It first re*986cited in a number of “Whereas” clauses the existence in Mississippi of the two races, their distinctive prejudices and instincts, the unchanging nature of racial differences so that “one race or the other must have charge and control [of] the governments of such states,” which would lead to instability “and in as much as the white people only are capable of conducting and maintaining” government, the “negro race * * * being wholly unequal to such great responsibility * * jt then resolved that it was the deliberate judgment of the Convention that “the true and only efficient remedy for the great and important difficulties” described “lies in the repeal of the XV Amendment of the Constitution •x- -x- * so ^at “such restrictions and limitations may be put upon negro suffrage, by the several States, as may be necessary and proper for the maintenance of good and stable governments * 39
One delegate referring to the large adult Negro population of “70,000 * * in excess of the white vote” declared it to be their duty to prevent the Negro majority from overthrowing the present civil government, and then offered a solution in this exclusive method: “How is this end to be accomplished? Only, in my judgment, by such an adjustment of the basis of suffrage as will secure to the white race a fixed and permanent majority. The white people * * * want to feel and know that they are protected * * * against * * * the possibility of Negro rule * * *. They demand this at our hands * * * and nothing short of this will satisfy them or excuse us. The remedy is in our hands. We can if we will afford a safe, certain and permanent white supremacy in our state.” Another delegate recognizing that “the powers of government are politically and constitutionally lodged in the Negro race” declared that “the paramount object of this Convention is to transfer it to and invest it in the white race.” Apart from repeal of the Fifteenth Amendment “this could be accomplished” in several ways, one being “by an educational * * * qualification.”' Others echoed. “That is what we are here for today to secure the supremacy of the white race.” With poetic overtones, one remarked, “We are embarked in the same ship of white supremacy, and it is freighted with all our hopes.” And President Calhoon made crystal clear the more generalized eloquence of his opening address. Of the Negroes, he is reported to have said: “We want them here, but their own good and our own demands that we shall devise some means by which they shall be practically excluded from government control.”
These contemporary views of the delegates are borne out by the long look of history. There have been at least two reunions of the surviving delegates of the Constitutional Convention, one in 1910, another in 1927. These proceedings clearly reveal the purpose of the Convention. The “primary purpose of it was to adopt some provision * * * which would secure to the State a good and stable government, freed from the incubus of Republican or negro rule. * * * All understood and desired that some scheme should be evolved which would effectively remove from the sphere of politics in the State the ignorant and unpatriotic Negro. * * *.”40 In the 1927 meeting, the renunion was called to order with the statement that “ * * * on that day, thirty-seven yeai's ago, the Constitutional Convention of 1890 enacted an organic law which gave Mississippians Anglo-Saxon government, and adjourned.” 41 Discussing the achievements of this Convention, the Chairman of the surviving delegates modestly declared: “It was no easy task for the *987convention * * * to enact a state constitution practically eliminating from the electors of the State at least eight-tenths of its colored people, citizens of the United States, in the face of the fifteenth amendment * * The “fifteenth amendment * * * was not violated” by this Constitution. Rather, it was “only circumvented by Anglo-Saxon ingenuity.” Of “the effort * * * to practically disfranchise the Negro race” in the face of the Fifteenth Amendment, another described the “three full weeks” of “debating this momentous issue” and the result that “ * * * out of the mill was ground the franchise article in our present constitution, which will ever protect us from an irresponsible class.” Convinced that “civilization depended upon the supremacy of the white race in Mississippi,” but knowing full well that the right of “the colored man to vote” could not be defeated because of “race, color, or previous condition,” the work of the Convention was described as one in which “we belted the whole circle of expedients in legislating against his habits and weaknesses, and, without infringing the provisions of the Constitution of the United States, we provided for perpetual white supremacy in the State of Mississippi * * *.”
Judge Thompson, one of the delegates, after remarking that there was “scarcely a conceivable scheme having the least tendency to eliminate the Negro vote that was not duly considered by the convention” then declared, “It is regrettable that all the suggestions * * * were not recorded; had they been preserved, the record would be a monument to the resourcefulness of the human mind.” 42
One delegate reciting in detail the problems besetting the State described the four-step structure of legislative apportionment (districting to favor white counties), the electoral plan for the Executive and Judiciary, limiting Negro suffrage by the annual poll tax, and the adoption of the understanding clause, lie concluded that these “several suffrage requirements combined” have “as they were intended, reduced the Negro majorities to a negligible political quantity.” He then characterized the problem and its solution in these doleful terms. “Concisely and correctly summed up, of the two ills Mississippi chose the lesser. She has exchanged an organic malady for a functional disorder. The Convention substituted a desiccated for a diseased electorate. The ensuing ills of the present state are within the check and correction of the white citizens.” 43
The Understanding Test
The understanding test was early proposed. Despite the considerable advantage this would work in favor of the whites because of the lower white illiteracy rate (white — 11%; Negro — 76%), some, opposing it, expressed the “fear [that] it will lead to trickery and fraud.” Adopting this test “placed in the hands of the officer who is to apply the test the power to defraud and disfranchise.” Recognizing in those early days what Negro applicants in the Twentieth Century were to experience44 the test was criticized in blunt language that it didn’t “look honest, straight-forward or manly.” Rather, it “looks like a farce to make a registration officer decide whether a voter rightly interprets a clause of the Constitution.”45 Disclaiming re*988sponsibility for “anything so vague in its application and uncertain in its effect” one delegate from a black county reported he had acquiesced on the simple proposition that “half a loaf is better than no bread.” There was substantial public approval for the view expressed by one that “the people sent the delegates to the Convention to secure white supremacy, not by a trick or artifice, not by fraud, stratagem, or subterfuge, but by brave, open, honest and honorable methods,” declaring that this understanding “section was a fraud upon its face and the trail of the serpent was on it all,” he concluded that “the mephitic vapor which arises from the section * * makes one feel like stuffing the X'egistration books.”
One of Mississippi’s distinguished legal scholars and Justice of its Supx’eme Court, George H. Ethridge,46 does not flinch at the word “discriminate.” Of § 241 he remarked, “It is said that this section while it does not discriminate against any person or race, it discriminates as to their character and nature.” Not elaborating this dialectic, he then recognized that “this is one of the methods of disfranchising the Negro.” As a Mississippi lawyer and Mississippi judge, he saw as fedex-al judges were to see a quax'ter of a century later that with the understanding test of § 244, “ * * * a person who cannot read would be largely at the mercy of the registrar * *. The registrar could pick out any section he desired and read it to him and call on him to explain it.” 47
The White Man’s Democi’atic Primary
Few as they are, difficult as it is for them to become registered, Negro voters are effectually excluded in the elective process through the means of the democratic primary.48 The heavy hand of the State has been in this too.
Beginning in 1902 with the statutory advent of primaries,49 the various executive committees of the Decocratic Party, state and county, categorically allowed white democrats only to participate. Typical of these actions was the-resolution of the State Committee in 1907. “Resolved, in addition to the qualifications prescribed by law for voters in said primaries, all voters therein shall be white democrats.” In 1915 the State-Committee, rejecting the implication in other resolutions that “unjustly reflect on the white democratic elections in this state,” declared that “ * * * the election just concluded [was] an honest and patriotic expression of the choice of the white democrats of Mississippi.”
Perhaps forecasting like indifference to the school decisions ten years later, the decision by the Supreme Coux't in 1944 holding “white primaries” to be unconstitutional 50 caused no change in result, only in methods. The first big test came in the July 1946 Democratic Primary election for United States Senator resulting in the renomination of Senator Theodore Bilbo. The practices were the subject of investigation by special eom-*989mittee of the Senate.51 One member of the State Democratic Executive Committee, after acknowledging that “back in the old days, the State Democratic executive committee * * * specified that only white Democrats * * * take part” and the meeting held in 1946 to resolve the question posed by the Supreme Court decision, testified that while all thought the Negro “had a legal right to vote” nevertheless “ * * * it was the unanimous opinion — although nothing was spread on in this about it— that they didn’t want [the Negro] to vote, therefore, he wouldn’t vote * The conclusion, he went on, was that “we thought the best thing to do was to say nothing and not agitate the matter one way or another and let matters take their course, and so that course was pursued.” 52
This “do nothing” plan seemed to work.53 The Government’s material shows specific places and names of Negroes attempting to vote in that primary who were turned away.54
But the “do-nothing policy” did not long prevail. In 1947 the Mississippi Legislature enacted laws to require that in order to vote in a primary, participants must be in accord with the principles of the particular party.55 Any person may be challenged at the polls as to his qualifications and accord with the principles of the party.56 The party organization was not slow to act. Beginning in 1948 by successive actions, it has adopted principles that Negroes could not subscribe to.57 And these principles soon had the imprimatur of the State of Mississippi.58
The answers show by name, date, place and county that the system worked. Negroes trying to vote in primaries were successfully challenged. This continues up to the most recent primaries of 1962. Typical, though spectacular, was the incident in the August 1955 primary and run-off in the all-Negro town of Mound Bayou, Mississippi, Bolivar County. Accompanying the ballot boxes was a written challenge signed by each of the candidates challenging all voters from this precinct (known to be Negroes only) as such voters were not in accord with the declared principles of the Democratic Party.59 Although there were 295 registered Negro voters, none were allowed to vote. Another device frequently used was the maintenance of two separate poll books by the county registrars, one being the general election poll book which included the names of qualified Negro voters. The other, a primary poll book pursuant to instructions from respective Democratic Executive Committees, excluded Negro registrants.
*990Separate But Not Equal Education for Negroes
Segregation of the schools, as such, may not appear to be directly involved in voter registration. Certainly a voter registration case cannot be made the vehicle to bring about this change in state custom and practice. But in the massive assault on voter registration here, it is a direct element of the Government’s thesis. The charge is that the understanding test, as first conceived in Miss. Const. § 244 and as later amended in 1954 to include read and understand, was, and is, a ready mechanism to disfranchise the Negro because of inferior education. It is the inferior education, not its segregated characteristic, that is important. Any appraisal of the quality of education must, of course, reckon with the open, frank policy of segregation.60
Although Negro children of school age have always exceeded the number of white children,61 the general level of Negro teacher training is below that for whites.62 Likewise, the amount spent, including teachers’ salaries, is far less for Negroes despite recent spectacular increases.63
*991Only recently, and then under the impetus of the 1954 school decisions, has there been any near parity as to the number of consolidated versus unconsolidated (one and two-teacher schools).64 The same is true of enrollment in high schools, a matter of much consequence in a test designed to elicit interpretation and understanding of a constitutional provision and the duties of citizenship.65
This is not a mere matter of statistics. The responsible officials of Mississippi have publicly recognized the disparity in educational facilities and the necessity for substantial improvement.66 Governor Wright in 1950 urged action. “We face,” he told the joint session of the Legislature, “a serious problem in the matter of providing comparable educational opportunities for the two races in our State.” He identified the problem in the three phases of teacher salary adjustments, transportation, and building facilities. He recommended legislation-for equalization of teacher pay “and removing any discrimination as between-the races.” Recognizing that what existed was not separate and equal, he urged' “that a program be enacted providing for equal facilities between the races recognizing that children of both races are-entitled to equal opportunities,” in, of course, segregated facilities.67 The same-views were echoed by Governor White-two years later. “It is true that there is-a wide variation in educational opportunities between the races.” 68
And various official biennial reports of the State Superintendent of Public Education have portrayed this great disparity in graphic terms. Over a wide space of years, they pinpoint the causes. For example, “in many counties * * Negro children are forced to attend school in mere shacks or in church houses.” 69 As of 1930-1931, “98.3 per*992cent of all children in schools for the colored race were in grades one to eight inclusive and 1.7 percent in grades nine to twelve. The great majority of colored children never got beyond the sixth grade.” 70 The fact is “that we spend less money in Mississippi per child in the schools for the Negro race than in the schools for the white race.” 71
Teacher quality for Negroes suffered from lack of adequate colleges. As a consequence “the quality of work done in the school room by the majority of negro teachers would not rank very high when measured by any acceptable minimum known to the leaders in educational thought.” 72 The Negro teaching force had “an average of 50 enrolled pupils each”, but the average was deceptive since “teachers in the lower grades frequently have in their charge from seventy-five to one hundred and fifty pupils. * * *.”73 In 1933-35, out of 3,700 Negro school houses, only two-thirds were publicly owned. For the other third (1,440), schools were “conducted in churches, lodges, old stores, tenant houses, or whatever building is available.” 74
As late as 1937 “ninety-four percent of the educable Negro population of high school age” were “not in school * *.” 75 This was hardly surprising since “there [were] twenty-eight counties in Mississippi which [did] not have any recog-rized high school facilities for Negroes.” 76 As of that same period, the state board prescribed $28 per month for a six-month term ($170 per year) for Negro teachers. It was, of course, “obvious that the salary problem is one of our real problems * * * in Mississippi.” 77 Even physical facilities as late as 1945 represented “one of the most pressing needs in Mississippi” to meet the simple but then unattained object that “sehoolhouses need not be elaborate, but they should at least be sanitary, comfortable and adequate.” 78 The report of 1955-57, noting considerable progress, but recognizing “that public schools for Negroes have been poor in the past” made specific recommendation for “getting all communities to meet the responsibility of truly equalizing facilities” for Negro and whites.79 It recommended also increase in graduate training for Negro teachers, administrative supervision for Negro elementary schools since “many elementary teachers are not fully qualified,” and local supervision of classroom teaching since “the fact that public schools for Negroes have been poor in the past * * * has a direct bearing on the quality of instruction being done * * •■.”80
All of these findings have been confirmed by various professional studies, including those for the University and the State Legislature.81
*993Pursuant to legislation in 1953, all counties were to make educational surveys of educational facilities and submit reorganization plan by July 1, 1957. Surveys were to be made by specified agencies of the state university system. The materials furnished by the Government contain summaries and extracts from 1955 to 1957 reports made in many counties.82 As to Negro schools, they are nearly all the same: with per capita per pupil expenditures running frequently two to one in favor of whites, Negro school buildings are run-down, inadequate, unlighted, overcrowded, without desks, blackboards or needed facilities, staffed by overworked, underpaid, under-trained Negro teachers.83
The 1890 Plan Has Worked
In the field of racial discrimination, figures do count. Figures tell the best, if not the whole, story. United States ex rel. Seals v. Wiman, 5 Cir., 1962, 304 F.2d 53, at 66, 67.84 The figures here are little less than devastating.85 In many counties other than the six listed in the majority opinion (Part IV), the actual result shows that the percentage of registered Negro voters runs from a low of 0% to a high of 2.9.% This is in con*994trast to a low of 57 % and a high of 100% for whites in the same counties.86
Of course there might be several explanations for these figures. One might be that this is what the Negroes want. Another might be that this is just accidental. A third might be that this proves the effectiveness of a carefully contrived plan to exclude the Negro. A choosing from those possible inferences is not a function of pleadings or a motion to dismiss. On a motion to dismiss, the Court cannot, for example, declare that this is all one of nature’s accidents. And in the face of other evidence which the Government proposes to offer, it cannot be charged off at this early stage as voluntary conduct by many thousands of adult Mississippi Negroes. For in like response to interrogatories seeking factual basis for the allegations in the complaint that Negroes have regularly, consistently been denied the right to register or vote or both, the Government, citing chapter, verse, county, date, time, name, and circumstance, has identified thousands of Negroes who have sought but who have been denied these rights.87 This leaves as plausible the inference asserted by the Government— that the 1890 plan, supplemented by inferior schools in a segregated society, operating in a closed white man’s democratic primary with changes in 1954, 1960 and 1962, freezing in a large body of whites while freezing out thousands of Negroes — has achieved its purpose. Only a trial, at least in the present posture of this case, can resolve the choice.
That inference, once drawn, after a trial either as a matter of fact or as a matter of law, will go a long way — if not the whole way — toward establishing that the entire voter-registration-voting structure is invalid, not because it has been discriminatorily applied, but because it was meant to work that way and has.
*995Meeting the Exigencies From the Law’s Reverses
The rapidity with which even the slightest breaches in this Maginot Line were closed demonstrates a continuing purpose, not only to institute but to maintain a structure of discrimination. Only brief mention may now be made of some of the more vivid of these. ■
And For Or
The first is the amendment to § 244 to prescribe a read and understand test. Though Peay v. Cox, 5 Cir., 1951, 190 F.2d 123, opened up the door to Negroes who could read or understand, the effort in 1952 to amend the Constitution was unsuccessful. In 1954 the full impact was soon realized under the pressure of the 1954 Supreme Court school decision. With effective aid from White Citizens Councils, both the voter registration amendment and the school amendment giving the Legislature the discretion to maintain public schools were adopted.88
Was this action just a coincidence? Or was it an immediate and effective response against the possibility that the great number of under-educated adult Negroes, the product of segregated schools then acknowledged to be inferior, would now at least be eligible'to orally state an understanding or interpretation ? And if not now, would they not in the early future be eligible as more and more Negroes would receive an education of equal quality as a result of “integrated” attendance at formerly all white schools? At this stage of the proceedings, the minimum called for is a trial. For if those were the purposes, then Gomillion v. Lightfoot, 1960, 364 U.\S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, would permit both judicial inquiry into, and judicial redress for, such racial discrimination.
The 1962 Package
The complaint describes in detail the Government suit against Registrar Lynd, Forrest County, including the appeal, the injunction pending appeal by the Fifth Circuit resulting thereafter in contempt orders, hearings, judgments and affirmance.89 Consequently, the Government is in no sense confined to the material set forth in answers to the interrogatories.90 The Government may also legitimately point to all of the now publicly known developments in the Lynd cases to demonstrate that it can prove its theory. In a nutshell, the theory is that most, if not all, of the 1962 package of bills 91 was a direct, immediate effort to overcome or circumvent successive adverse decisions of the Fifth Circuit, particularly, in the Lynd cases.
The Lynd case essentially charged discriminatory application of laws otherwise assumed to be valid. One of the principal weapons for discriminatory administration was the registration application form.92 Contrary to the bland assumption in the majority opinion that, “No tricky application form is alleged or exhibited,” Majority Opinion Part XIV, at 956, the developments in the Lynd eases demonstrated that the form was loaded with ambiguities, pitfalls, and traps for the unwary, and as such, was a ready-made device for racial discrimination.93
*996The greatest source of discrimination, of course, was in the requirement that the applicant copy a section of the Constitution selected by the registrar (Item 18) and then write his reasonable interpretation and meaning thereof, (Item 19) and also write a statement of his understanding of the duties and obligations of citizenship (Item 20).94
Those sections of the Mississippi Constitution given frequently to Negroes but never to whites were § 112,95 § 124,96 § 160,97 § 224,98 and § 273,99 all exceedingly long, complex provisions having little relation to the usual notions of the nature of our constitutional government and its structure. In contrast, simple, direct and more fundamental ones were given frequently to whites, but never to Negroes, such as § 118,100 § 139,101 and § 226.102
The Lynd case centered about the use of the application form. In the injunction pending appeal (later affirmed), the *997Fifth Circuit found a series of specific discriminations and enjoined the Registrar from committing specific acts. 301 F.2d 818, at 823. The registrar was ordered to give Negroes the benefit of the same type of assistance theretofore given to white persons; to cease rejecting applications of Negroes without giving the cause or reason for rejection; and to cease rejecting obviously qualified Negroes for inconsequential or no errors.
Typical of the immediate response was Miss.Laws 1962, Ch. 570. Prior to the amendment, this section required that an applicant fill out the application form without assistance or suggestion from any person. The amendment added that the requirements of the statute were mandatory; that no application shall be approved or the applicant registered unless all blanks on the application form are “properly and responsively” filled out by the applicant; and that both the oath as such and the application form must be signed separately by the applicant. And to inject a new standard which would defy a Federal Appellate Court determination that particular applicants were qualified as a matter of law,103 Miss.Laws 1962, Ch. 575 was enacted to implement the 1960 Amendment to § 244 by inserting a good moral character requirement. Another bill required publication of the names of applicants and allowed members of the public thereafter to challenge such applicants. Miss.Laws 1962, Ch. 572.
V.
No Legal Obstacle to Relief
When the true nature of the Government’s theory is kept in mind, none of the legal arguments advanced by the majority serves as a stumbling block.
If from evidentiary materials, the Government establishes104 that the disparity is the result of a structure instituted or thereafter maintained for the purpose of denying the Negroes’ right to vote, then each and every statutory-constitutional element helpful to the operation of the illegal machine must fall.
Apparent validity on the face of such enactments will be of no significance. Gomillion v. Lightfoot, 1960, 364 U.S., 339, 81 S.Ct. 125, 5 L.Ed.2d 110; and see Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Lane v. Wilson, 1938, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281. Hence cases such as Williams v. Mississippi, 1898, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012, and Darby v. Daniel, S.D.Miss., 1958, 168 F.Supp. 170 which the majority (see Part XII) stresses as a holding “on the face” are of little consequence as precedents or for persuasiveness.
The extended preoccupation of the majority (see Part X) with the thesis that voter qualification is exclusively committed to the states is neither accurate nor significant. All bends to the Federal Constitution.105
Nor could the elusive, undefinable “good moral character” test (see Part *998XIII) be employed.as an intended or effective instrument of discrimination, no matter how well established it may be as a statutory requirement for professional or business permits. Standards of this kind, otherwise unobjectionable and often praiseworthy, must not be available to shield purposeful discrimination or conceal its exercise. The Fifth Circuit, for ■example, held a similar requirement for alumni recommendation unconstitutional since no Negro could hope to get such assistance from Mississippi white persons. Meredith v. Fair, 5 Cir., 1962, 298 F.2d 696, 701-702; and see also Ludley ,v. Board of Supervisors of Louisiana State University, E.D.La., 150 F.Supp. 900, aff’d, 5 Cir., 252 F.2d 372, cert. denied, 1958, 358 U.S. 819, 79 S.Ct. 31, 3 L.Ed.2d 61. And certainly a close look must be given to a test when the whole public — from the publication of the applicant’s name — is invited to challenge the “good moral” character of a Negro. ,If First Amendment rights of freedom of association and expression are protected against such publicity (see note 28, supra), then surely Fifteenth Amendment rights are just as deserving.
Finally, nothing in Lassiter v. Northampton County Board of Elections, 1959, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d .1072, affords any basis for supposing that .either a literacy test or an understanding test is free from attack when purposefully chosen to deny, not grant, voter privileges.
Discrimination against Negroes, on the Government’s theory, has not resulted from discriminatory administration of valid laws. It has happened because it was meant to happen. To eradicate this evil, the attack need not be made piece by piece. It may be made by a frontal assault on the whole structure. What the Government is saying is that Mississippi knows that this was the purpose, and now all it wants is for the Court to see what “[a] 11 others can see and understand,” 106 since there “is no reason why [courts] ■should pretend to be more ignorant or unobserving than the rest of mankind.” 107
I therefore respectfully dissent.
. As discussion of court decisions, opinions, etc., inevitably calls for use of terms, such as “the Court,” or “this Court,” I refer hereafter to the Court’s decision and opinion in the instant case as the majority. Likewise, by the abbreviation “Fifth Circuit,” I refer to the United States Court of Appeals for the Fifth Circuit of which Judge Cameron and I are members.
. See, for example, dismissal of the State Board of Election Commissioners (the Governor, Secretary of State, Attorney General) majority opinion Part VI; mis-joinder of causes of party defendants, Part VII; lack of jurisdiction over person of three registrar defendants, Part VIII; improper venue as to one registrar defendant, Part VIII; or necessity for separate trials as to each registrar to obtain a pattern or practice, finding and remedy, Part VIII.
. In publishing its opinion without awaiting time for preparation of this dissent, the majorty presumably thought it desirable that this case reach the Supreme Court along with, or at least not too long after, the appeal in United States v. State of Louisiana, D.C.La., 1963, (3-Judge) 225 F.Supp. 353-403. I would; agree with this objective.
. 28 U.S.C.A. § 1345. “Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.”
. 42 U.S.C.A. § 1983; cf. Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. •
. As the Court pointed out, “Debs has been relied on as a basis for standing in three recent cases in this circuit: United States v. Lassiter, W.D.La.1962, 203 F.Supp. 20, aff’d 371 U.S. 10 [83 S.Ct. 21, 9 L.Ed.2d 47]; United States v. Klans, M.D.Ala.1961, 194 F.Supp. 897; and United States v. City of Montgomery, M.D.Ala.1962, 201 F.Supp. 590.” 318 F.2d 14.
. 42 U.S.C.A. § 1971(c). The portion here under discussion was Civil Rights Act of 1960, § 601(b), 74 Stat. 90, and the section now reads: “(c) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventative relief, including an application for a permanent or temporary injunction, restraining order, or other order. In any proceeding hereunder the United States, shall be liable for costs the same as a private person. Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State.”
. “It is urged that it is beyond the power of Congress to authorize the United States to bring this action in support of private constitutional rights. But there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and we think it perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief.” 362 U.S. 17, at 27, 80 S.Ct. 519, at 526, 4 L.Ed.2d 524.
. A finding of discrimination was the end result in United States v. Lynd, 5 Cir., 1963, 321 F.2d 26, cert. denied, 1964, 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416, earlier opinion 301 F.2d 818; and the District Court found, and the Fifth Circuit afiirmed, the finding of flagrant, rank discrimination in United States v. Ramsey, 5 Cir., 1964, 331 F.2d 824.
. 42 U.S.C.A. § 1971(c) is set out in full at note 7, supra.
. United States v. Atkins, 5 Cir., 1963, 323 F.2d 733, 739; United States v. Ramsey, 5 Cir., 1964, 331 F.2d 824.
. See also: State of New York v. United States, 1946, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326; United States v. Arizona, 1935, 295 U.S. 174, 55 S.Ct. 666, 79 L.Ed. 1371; United States v. Michigan, 1903, 190 U.S. 379, 23 S.Ct. 742, 47 L.Ed. 1103.
. Of this disclaimer, the Fifth Circuit in Atkins, supra, stated: “We follow the same course in the present case.” 323 F.2d 733, 739, n. 7.
But the Court earlier had stated: “It ■should be recalled that the State of Alabama is a party to this action and is responsible for the discriminatory acts •and practices of the registrars. This is expressly provided for in 42 U.S.C.A. § 1971(c) as amended by the Civil Rights Act of 1960, § 601(b).” 323 F.2d 733, 739.
. United States v. Dogan, 5 Cir., 1963, 314 F.2d 767; Kennedy v. Lynd, 5 Cir., 1962, 306 F.2d 222, at 228, cert. denied, 371 U.S. 952, 83 S.Ct. 507, 9 L.Ed.2d .500.
. In a series of proceedings instituted by the Attorney General under § 1974(b) and (d) to obtain voter records, constitutionality has repeatedly been upheld against specific attack. In re Dinkens v. Attorney General, 5 Cir., 1961, 285 F.2d 430, approving and adopting, Alabama ex rel. Gallion v. Rogers, M.D.Ala., 1960, 187 F.Supp. 848; Kennedy v. Bruce, 5 Cir., 1962, 298 F.2d 860; United States v. Lynd, 5 Cir., 1962, 301 F.2d 818; Coleman v. Kennedy, 5 Cir., 1963, 313 F.2d 867, cert. denied, 373 U.S. 950, 83 S.Ct. 1681, 10 L.Ed.2d 705; Kennedy v. Owen, 5 Cir., 1963, 321 F.2d 116; Kennedy v. Lewis, 5 Cir., 1963, 325 F. 2d 210.
. Although the successor administrators were still parties, they were absolutely indifferent or noncommittal. 304 F.2d 583, at 588.
. The District Court set up an elaborate policing machinery consisting of monthly reports to both the Court and the United States Attorney which were subject to verification by checks on the voting records by agents of the United States. 304 F.2d 583, at 584. Similar relief was prescribed by the Fifth Circuit in Unit*979ed States v. Ramsey, 5 Cir., 1964, 331 F.2d 824.
. The Court by separate unpublished order and findings in the proceeding for contempt held the Registrar Lynd in civil contempt for violations of the injunction pending appeal. Certiorari was denied, Lynd v. United States, 1964, 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416. The civil contempt order also required that the registrar (a) immediately register approximately 40 named Negro applicants; (b) use specified sections of the Mississippi Constitution for the “understanding” test; (c) cease rejecting applications for errors if the person met the standards specified in the order; and (d) inform the applicant of the exact errors and deficiencies in the application.
. See also: Ex parte Virginia, 1880, 100 U.S. 339, 25 L.Ed. 676; Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5; United States v. Raines, 1960, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524; Poindexter v. Greenhow, 1885, 114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185.
. See Mississippi v. Meredith, 1963, 372 U.S. 916, 83 S.Ct. 722, 9 L.Ed.2d 723, granting motion of the United States for leave to be named party respondent and denying certiorari from judgments holding the Governor and Lt. Governor of the State of Mississippi in civil contempt in proceedings instituted by the United States as amicus curiae-intervenor, Meredith v. Fair (United States v. Mississippi), 5 Cir., 1962, 313 F.2d 532; Meredith v. Fair (United States v. Mississippi), 5 Cir., 1962, 313 P.2d 534.
. See, e. g., Miss.Code § 3210.5: “The comity registrar, while acting within his jurisdiction and under the authority of this act, shall not be liable personally for any error of judgment.” And see also Miss.Code of 1942, § 3230: “ * * *. Costs shall not, in any case, be adjudged against the commissioners or the registrar.”
. 42 U.S.C.A. § 1971(a) was designated Rev.Stat. § 2004 when Guinn and Myers were decided. It is clear from the legislative history that 42 U.S.C.A. § 1971(c) imposes no substantive limits on the scope of the rights protected by § 1971 (a). Section 1971(c) provides an enforcement procedure to implement § 1971 (a) similar to that available by virtue of Bev.Stat. § 1979 (now 42 U.S.C.A. § 1983) to enforce Bev.Stat. § 2004. H.R. Rep.No.291, 85th Cong., 1st Sess. 12 (1957) U.S.Code Congressional and Administrative News p. 1966.
. See Majority Opinion, note 1 and accompanying text.
. In the instant case the Court unanimously overruled all motions of all defendants which sought to compel the Government to plead allegations of discrimination with factual specificity under F.R.Civ.P. 9(b) on the asserted theory that these were equivalent to charges of fraud. This ruling was clearly correct. United States v. Lynd, 5 Cir., 1963, 321 F.2d 26, 27, cert. denied, 1964, 375 U. S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416; United States v. Lynd, 5 Cir., 1962, 301 F.2d 818, 822, cert. denied, 371 U.S. 893, 83 S.Ct. 187, 9 L.Ed.2d 125.
. Peay v. Cox, 5 Cir., 1951, 190 F.2d 123. This case is heavily stressed by the majority. See Parts V, n. 17, XIII, n. 59. The aspect of the case requiring a voter to exhaust administrative remedies has been legislatively overruled. 42 U.S.C.A. § 1971(d).
. This battle was on many fronts. In Kennedy v. Lynd, 5 Cir., 1962, 306 F.2d 222, cert. denied, 371 U.S. 952, 83 S.Ct. 507, 9 L.Ed.2d 500, the Government sought, and after reversal in the Fifth Circuit, obtained the right to voter records under § 1974(b). A few months earlier in United States v. Lynd, 5 Cir., 1962, 301 F.2d 818, the Fifth Circuit issued its own injunction which was affirmed after hearing on the merits, 5 Cir., 1963, 321 F.2d 26, cert. denied, 1964, 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416. Simultaneously the Fifth Circuit by order found Lynd in civil contempt. See note 18, supra.
. These were described as House Bill 900, amending § 3213; H.B. 901 amending § 3232; H.B. 905 amending § 3209.6; H.B. 822, 904; H.B. 903.
. Cf. N.A.A.C.P. v. Alabama, 1958, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. Little Rock, 1959, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; Gibson v. Florida Legislative Investigation Committee, 1962, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929.
. The majority passes it off in this fashion:
“[We further find] that the interrogatories [have] been answered and sworn to by various attorneys for the plaintiff and set forth the results of their investigations and [are] made up of legal or factual conclusions from hearsay evidence or [are] otherwise inadmissible in evidence.” Majority Opinion, Introduction 2, n. 1.
. No motion for summary judgment was filed or granted so these materials do not become pertinent under F.R.Civ.P. 12(c) and 56(a).
. 1957, 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80.
. Tliis approach has effectually been adopted by the Special Committee on Evidence of the Judicial Conference of the United States in its Preliminary Study of the Advisability and Feasibility of Developing Uniform Rules of Evidence for the Federal Courts, 30 F.R.D. 73, 79 (1962).
. The policy finds frequent, formal and legislative expression. Emphatic is the Resolution of Interposition, Senate Concurrent Resolution No. 125, adopted by the Legislature of the State oí Mississippi on February 29, 1950. See also Miss.Code of 1942, § 4065.3 commanding that all employees of the State and its subdivision “be and they and each of them, in their official capacity are hereby required” to give “full force and effect in the performance of their official and political duties to the Resolution of Interposition * * * and are further directed and required to prohibit, by any lawful, peaceful and constitutional means, the implementation of or the compliance with the Integration Decisions of the United States Supreme Court of May 17, 1954, * * * May 31, 1955, * * * and to prohibit by any lawful, peaceful and constitutional means, the * * * mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or as- ■ sembly in this State, by any branch of the federal government, any person employed by the federal government, any commission board or agency of the federal government * * * and to prohibit, by any lawful, peaceful and constitutional means, the implementation of any orders, rules or regulations of any board, commission or agency of the federal government, based on the supposed authority of said Integration Decisions * * *. * * *. The prohibitions and mandates of this Act are directed to the aforesaid executive branch * * * and all individuals thereof in their official capacity only. Compliance with said prohibitions and mandates of this act * * * shall be and is a full and complete defense to any suit whatsoever in law or equity, or of a civil or criminal nature which may hereafter be brought against the aforesaid executive officers * * * or employees * * * by any person, * * * the State of Mississippi or any other state or by the federal government of the United States, any commission, agency, subdivision or employee thereof.”
Part and parcel of this program is the State Sovereignty Commission, Miss.Code of 1942, §§ 9028-31-48 [Laws 1956] of which the Governor is the Chairman. It is charged with the duty “ * * * to do and perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Mississippi * * * from encroachment thereon by the Federal Government or any branch, department or agency thereof * * *.” Miss.Code of 1942, § 9028-35. Segregation is specifically ordained for: Public schools: Miss. Const., 1956, art. 8, § 207; Miss.Code of 1942, §§ 6220.5 (integration is a criminal offense), 6766, 6475-14, 6336-05, 6336-06(a). Public transportation and' terminals: Miss.Code of 1942, §§ 2351.5,. 2351.7, 3499, 7784, 7785, 7786, 7786-01,. 7787, 7787.5. County and municipal jails, and state prisons: Miss.Const. § 225; Miss.Code of 1942, §§ 3374.5, 4259, 7913, 7971. Insane and charity hospitals: Miss.Code of 1942, §§ 6881-83, 6927,. 6973 — 74. Further, it is a crime to conspire to overthrow the segregation laws of the State, Miss.Code of 1942, § 2056.
Meredith’s admission to the University of Mississippi produced a flood of like-enactments. H.B. 2, First Extraordinary Session, 1962, 7 Race Rel.L.Rep. 1247 (1962), provides that “every word spoken * * * and every official act done * * * heretofore or hereafter by any officer, agent or employee of the State of Mississippi in anywise connected with or incident to keeping the Institutions of Higher Learning and the public schools and colleges of this state racially segregated * * * is hereby declared to be and established as the sovereign act or acts of the sovereign State of Mississippi * * * and not the individual act of such person * * * and shall be given full force and effect as the substantive law of this state as the official sovereign act * * * of this state and not the private or individual act * * * of such persons House Concurrent Resolution No. 18, First Extraordinary Session, 1962, 7 *985Race Rel.L.Rep. 1248 (1962), recites the developments on the admission of James H. Meredith and the use of federal troops, and petitions the Government of the United States for a redress of grievances including the removal of Meredith from the University.
. See Note 34 on Page 985.
*98534. The Court took judicial notice of this in Meredith v. Fair, 5 Cir., 1962, 298 F.2d 696.
. These were:
(1) An understanding test
(2) Careful districting of white versus black counties
(3) An electoral system to preserve white control on executive and judicial elections
(4) Use of the pure white democratic primary and
(5) Restriction of party membership.
. In the discussion of this subdivision I draw on materials furnished in response to interrogatories requesting specific facts on which the Government based the claims in paragraphs 16 and 17 of its complaint that the chief purpose of the 1890 Convention was to restrict the Negro franchise and to perpetuate white supremacy. The Government filed detailed, voluminous answers titled “Purpose of Laws”, all of which I incorporate by reference. At this stage of the proceeding, it is not the Court’s function (nor mine) to credit or otherwise determine its truth other than to recognize that it is plausibly available as evidence or may lead to evidence. F.R.Civ.P. 26 (b).
. Mississippi Constitution 1869, Art. VII, § 2.
. Mississippi Constitution 1890 art. 12, §§ 241, 243, 244. Miss.Const. § 244 requires, among other things, that a voter shall “be able to read any section of the Constitution of this state; or he shall be able to understand the same when read to him, or give a reasonable interpretation thereof.”
. Journal of the Proceedings of the Constitutional Convention of the State of Mississippi (Jackson, Mississippi: E. L. Martin, 1890) 303-04.
. Mayre Dabney, The Proceedings of the Reunion of the Surviving Members of the Constitutional Convention of 1890 (1910).
. The Proceedings of the Reunion of the Surviving Members of the Constitutional Convention of 1890, 5 (1927).
. R. H. Thompson, Mississippi Constitution of 1890 — An Address Delivered to the Mississippi State Bar Association (Biloxi, Mississippi: 1923) 16-17.
. J. S. MeNeilly, “History of the Measures Submitted to the Committee on Elective Franchise, Apportionment, and Elections in the Constitutional Convention of 1890,” Publications of the Mississippi Historical Society. (Oxford, Mississippi: Printed for the Society, 1902) 129-140.
. See notes 9, 18, and 26 as to Forrest County and the Lynd contempt case; also notes 9 and 11, United States v. Ramsey, 5 Cir., 331 F.2d 824.
. “Persuaded that the understanding clause was based on fraud,” Louisiana rejected the Mississippi example. See United States v. State of Louisiana, D.C. *988La., 1963, 225 F.Supp. 353, 371, n. 46; also many of these, or similar materials, are discussed by Judge Wisdom in notes 45, 46, and 88.
. George Ethridge, Mississippi Constitution 424r-29, 435, 439, 445 (Jackson, Mississippi; Tucker Printing House 1928).
. He also discussed with frankness §§ 251 (timing of registration) and 254 (apportionment) and 256 (reapportionment).
. These materials also are in the answer volume entitled “Purpose of Laws” in response to interrogatories requiring the Government to state tbe factual detail in support of paragraph 21 of the complaint that from 1899 to 1952 white political supremacy was promoted by, among other things, Negroes being excluded from the Democratic Primary elections. I treat this as outlined in note 36, supra.
. Miss.Sess.Laws 1902, ch. 66.
. Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Terry v. Adams, 1952, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152.
. Hearings Before The Senate Special Committee to Investigate Campaign Expenditures, 1946, 79th Cong., 2nd Sess. [hereinafter cited Hearings].
. Hearings 371-72.
. The Senator, as a candidate for renomination, on the eve of the election described it as “Mississippi’s white senatorial primary election” and urged “every white Democratic man and woman” to participate in it. Hearings 382.
. A number of Mississippi Negro voters testified of their unsuccessful efforts to register or vote, or both. See pp. 140-141, 120-121, 281-282, 225-226, 250-263, 283-284, 298, 317-320, 124-125, 213-215 of the Hearings.
. Miss.Sess.Laws 1947, Ex. ch. 17.
. Miss.Code of 1942 § 3129.
. Resolutions of Mississippi Democratic Party 1948, 1952, 1960.
. See 1952 Resolution setting out and endorsing the principles adopted by the Democratic State Executive Committee, Miss.Sess.Laws 1952, Ch. 464.
These principles, legislatively approved, declared among other things: “We believe in the segregation of the races and are unalterably opposed to the repeal or modification of the segregation laws of this state, and we do not favor the practice of nonsegregation.”
. A copy of the Resolution, H.C.R.No.57, Ch. 464, Miss .Acts of 1952 (see note 58, supra) was attached.
. The matters discussed in this subdivision come from the volume of answers to interrogatories entitled “Comparison of Education for Negroes and White Persons 1890-1963,” comprising 89 pages in response to a request for the factual detail in support of the contention in paragraph 31 of the complaint that public educational facilities for Negroes were and are inferior to those provided for white persons. I treat these as in notes 36 and 48, supra.
. State of Mississippi School Census
Year White Negro
1890 207,652 292,581
1910 301,548 410,089
Year White Negro
1929 379,678 493,987
1949 393,804 492,349
1960 329,215 337,871
. For example, in 1929-1930 out of a teacher corps of approximately 3,900 white teachers and 3,100 Negroes, 3,263 whites were college graduates whereas 2,719 Negroes were not even high school graduates. By 1954 there was considerable improvement, but white teachers with college degrees out-numbered their Negro counterparts by three to one.
. The instructional cost per child in average attendance is graphically different:
1900-1901 1929-1930 1939-1940 1949-1950 1956-1957 1960-1961
White $8.20 $40.42 $31.23 $78.70 $128.50 $173.42
Negro 2.67 7.45 6.69 23.83 78.70 117.10
The following are selected comparisons of expenditures above the state minimum program listed sis: on a per child ba-
District White Negro
Amite Co. $ 70.46 $ 2.24
Benton Co. 59.42 15.63
Claiborne Co. 142.64 19.SS
Coahoma Co. 139.33 12.74
Hinds Co. 80.24 10.41
Leflore Co. 175.38 9.52
Madison Co. 171.24 4.35
Yazoo Co. 245.55 2.92
Dui’ing 1954-1955 every school district spent more for whites than Negroes. It ran from a high of $600, Glenwood District, Tallahatchie County (whites) to a lot of $45, Senatobia District, Tate County (Negroes) averaging as follows :
White Negro
Per Pupil Cost Per Pupil Cost
County average $161.00 $ 87.00
Separate district average 181.00 106.00
Even these figures may be deceptive. In the Report of a Study of the Education for Negroes in Sunflower County, Mississippi (Bureau of Educational Research, School of Education, University of Mississippi: March 1950), it was pointed out, at 134r-35, “Sunflower County in 1939-40 received $73,626 per capi-*991ta fund. Since 79 per cent of the eduea-bles at that time were Negroes, $58,165 was the amount received on the basis of the Negro children. However, only $35,-564 was spent for ‘instruction’ for the Negro children. Evidently $22,601 of this amount was expended elsewhere— probably on the schools for the whites. In the last two years the difference in the amount received and the amount [not spent for Negro children] is more than twice the $22,601 figure.”
. Between 1910 and 1930 Negro schools were not consolidated. As of 1930-1931, the make-up of the schools was as follows:
Number Consolidated Schools Number Unconsolidated Schools Number One-teacher Schools Number Two-teacher Schools
White 959 7S9 515 202
Negro 16 3484 2411 832
. In 1930-1931 out of 752 secondary schools, only 46 were Negro with an enrollment of 5,012 about l/10th of that for whites (49,742). By 1953 the enrollment ratio was still nearly three to one (474 — 285 schools) with Negro enrollment 26,667 compared with 61,323 whites. Fortunately for present and future generations, 1961-62 shows much improvement (white 77,694; Negroes 48,-798).
. It was not always so. Governor Var-daman recalling his proposal for a constitutional amendment to “control the distribution of a public school fund so as to stop the useless expenditure in the black counties” is reported as saying of a bill providing money for a Negro school in Holly Springs, “Did I sign it? No. I killed the bill when I killed the school $ *
. Message by Governor Fielding L. Wright to the Joint Session Mississippi Legislature, January 3, 1950.
. In 1953 Extraordinary Session Senate Journal 970.
. Biennial Keport and Recommendations of the State Superintendent of Public Education to the Legislature of Mississippi for the Scholastic Years 1929-30 and 1930-31, 45 [hereinafter cited Biennial Report].
. Twenty Tears of Progress 1910-1930 and A Biennial Survey Scholastic Tears 1929-30 and 1930-31 of Public Education in Mississippi 130 [hereinafter cited Twenty Tears of Progress].
. Twenty Tears of Progress 107.
. Twenty Tears of Progress 90.
. Biennial Report 1933-35, 41.
. Ibid.
. Biennial Report 1935-37, 13.
. Ibid. Negroes “schooled” in that era are still a factor since approximately 8.6% (79,183) of the State’s 1960 Negro population were born between 1923 and 1931. (Assuming entry to first grade at 6 years, and schooling terminating grade eight.) United States Bureau of the Census, United States Census of Population 1960, General Social and Economic Characteristics, Mississippi, Final Report PC(1)-26C, Table 37, at 26-112 (1961).
. Biennial Report 1937-39, 16.
. Biennial Report 1943-45, 21-22.
. Biennial Report 1955-57, 40, 41.
. Biennial Report 1957-59, 40, 41.
. See A Report of the Committee of Investigation of the Teacher Training Facilities for Negroes in Mississippi, Bulletin No. 61 (1930) State of Mississippi Department of Education; Higher Education in Mississippi: A Survey Report to the Board of Trustees, Institutions of Higher Learning (1954) John E. Brew-ton, Director; Public Education in Mississippi : Report of Mississippi Legisla*993tive Education Study Committee, December 1961; Public Education in Mississippi : Report of Advisory Study Groups, Institutions of Higher Learning, 1961.
. The Reports extracted are by Dr. John E. Phay, Director Bureau of Educational Research, University of Mississippi or Dr. Ralph S. Owings, Head and Professor of Educational Administration, Mississippi Southern College.
As for another era (see note 76, supra), those “schooled” in the 1955-57 era are important. Those then attending (grades 1 through 12) span birth years of 1939-1951. Negroes born during that period comprise approximately 24.6% (226,500) of the 1960 Negro population. See United States Bureau of The Census, United States Census of Population 1960, General Social and Economic Characteristics, Mississippi, Pinal Report PC (1)-26C, Table 37, at 26-112.
. The following comments concerning Negroes in various county reports are typical: “The program is very weak and inadequate * * *. These boys and girls are not getting a program of education that appears to be of too much consequence. * * *. The listing of the offerings would not reveal anything that would prove valuable.” “The buildings for Negroes are most inadequate and in a deplorable condition.” “There is a dearth of teaching materials and equipment in all the Negro schools. There is a shortage of chalk boards, bulletin boards, reading material, charts, maps, and library books.” “The Negro buildings are most inadequate and in a deplorable condition * * *. It is quite evident from examination of the pictures of the schools that the Negro situation is pathetic.” In a one-teacher school, “the windows are inadequate, * * * it has no lights and the furniture consists of chairs and benches. There is no water supply * * *. Teaching aids, such as chalk boards and bulletin boards are desired.” Another one-teacher schoolroom “has a metal roof that leaks. The windows are inadequate and half the panes are missing * * *. There are no lights and the furniture is home-made benches. There is no water supply at all.” In another, “the teaching aides are most inadequate. The entire facilities are not suitable for school.” Of another county, “It may be said that throughout the entire county no high school for Negroes exists which presents a curriculum attractive enough to hold boys and girls in school. The needs of these youngsters are not being met.” It “may be noted * * * that in the Negro elementary schools, the quality of education and the materials available for teaching seem to be far below that in the white schools. * * In “ * * * both * * * the quality and quantity of housing, in the availability of instructional materials * * * the Negro elementary schools are below those of the white schools. * *
. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Smith v. Texas, 1940, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Speller v. Allen, 1953, 344 U.S. 443, 477, 73 S.Ct. 397, 97 L.Ed. 469.
. I treat this as in notes 36, 48, and 60. The material comes from the Government answers stating factual detail in support of the statistical allegations in the complaint.
.
June 1962
Whites Negroes
County Number Over 21 Registered % Number Over 21 Registered %
Panola 7,639 5,309 69 7,250 2 .028
Tunica 2,011 1,436 71 5,822 42 .72
Marshall 4,342 4,162 96 7,168 57 .8
Vazoo 7,598 7,130 93.0 8,719 256 2.9
Copiah 8,153 7,533 92.0 6,407 25 .39
Madison 5,622 5,458 97 10,366 121 1.1
Clarke 6,072 5,000 83 2,998 1 .03
Tallahatchie 5,099 4,330 85 6,483 5 .07
Holmes 4,773 3,530 70 8,757 8 .09
Kemper 3,113* 3,224* 100 3,221 30 .9
Forrest 22,431 12,655 57 7,495 22 .3
Lamar 6,489 5,593 91 1,071 0 0
This is as reflected in the answers. Doubtless one or the other figure is in error.
. These are found generally in the answer volumes. These answers were 19 (f), (g), relating to paragraph 69 of the complaint. These weigh approximately 35 pounds, and are over one foot thick. I treat these as in notes 36, 48, 60, and 85. This illustrates also the significance of evidence of discrimination on the Government’s theory. It is not to show discriminatory application, but to show the result of a discriminatory structure.
. This material is found in the Government’s answers. I treat it as in notes 36, 48, 60, 85 and 87.
. See notes 9 and 18.
. These materials are found in the multi-volume answers. I treat these as in notes 36, 48, 60, 85, 87 and 88. Also, at least at this stage, it is proper to take judicial knowledge of the records and proceedings of all of the Lynd cases.
. See note 27.
. This form is promulgated by the State Election Board, Miss.Code of 1942, § 3209.6, as amended recently in 1962 to require a space on the form to reflect information as to good moral character.
. For example, items “3. State your age and date of birth:”, “8. For how long have you resided in Mississippi?” “10. Specify the date when such residence began,” called for identical information for a native-born continuous resident, yet discrepancies resulted in rejection. Item *996“12. Check which oath you desire to take: (1) General- (2) Ministers--(3) Ministers’ Wife- (4) If under 21 years at present, but 21 years by date of general election s— -.” Item “21. Sign the oath or affirmation named in Question 12.” was followed by “(a) GENERAL and/or SPECIAL OATH” consisting of an affidavit with a line for signature marked “Applicant’s Signature As To Oath” and “(b) OATH OF MINISTER and/or MINISTER’S WIFE” with an affidavit and a line marked “Applicant’s Signature As To Oath.” Immediately below the line for minister’s signature there was another line marked “The applicant will sign his name here.” Though otherwise perfectly filled out, Negro applicants were frequently rejected because of failure to sign the bottom line which most (white and Negro) constructed to be the place for a minister-applicant to sign. Both the (a) general and (b) minister’s oath had blanks to fill out residence “in this State two years, and in • — -• Election District of-County one year.” Even though answer to Item “9. Where is your place of residence in the District” gave a correct address which would enable the registrar to know precisely from voting precinct records the proper voting District for the applicant and the answer to Item 10 “Specify the date when such residence began” would establish that it exceeded two years and one year respectively, the application was rejected if the wrong election district was named in the blanks of the oath.
. “Item 20. Write in the space below a statement setting forth your understanding of the duties and obligations of citizenship under constitutional form of government.”
. § 112. “Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. The legislature may, however, impose a tax per capita upon such domestic animals as from their nature and habits are destructive of other property. Property shall be assessed for taxes under general laws, and uniform rules, according to its true value. But the legislature may provide for special mode of valuation and assessment for railroads, and railroad and other corporate property, or for particular species of property belonging to persons, corporations, or associations not situated wholly in one county. But all such property shall be assessed at its true value, and no county shall be denied the right to levy county and special taxes upon such assessment as in other cases of property situated and assessed in the county.”
. § 124. This section is a 161-word, detailed explanation of the Governor’s pardoning power and the pardoning mechanism.
. § 160. This section is a long description of the jurisdiction of the Chancery Court elaborating technical distinctions between law and equity in real estate proceedings.
. § 224 covers the hiring of convicts for private or public work.
. § 273. This section is a 155-word, detailed description of the constitutional amendatory mechanism.
. § 118. “The governor shall receive for his services such compensation as may be fixed by law which shall neither be increased nor diminished during his term of office.”
. § 139. “The legislature may empower the governor to remove and appoint officers, in any county or counties of municipal corporations, under such regulations as may be prescribed by law.”
. § 226. This section contains a one-sentence restriction on hiring of convicts.
. This has been done at least twice by the Fifth Circuit. Alabama v. United States, 5 Cir., 1962, 304 F.2d 583, at 584, 594, aff’d mem., 1963, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112. And see paragraph 2a the unpublished contempt order in the Lynd case, certiorari denied, 1964, 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416; 5 Cir., 1963, 321 F.2d 26.
. Whether it will be able to establish all or any portion of the supporting facts either as a matter of fact-finding or as a matter of law, either in advance of, or after, trial (see Carss v. Outboard Marine Corp., 5 Cir., 1958, 252 F.2d 690; Camilla Cotton Oil Co. v. Spencer Kellogg and Sons, 5 Cir., 1958, 257 F.2d 162; Smoot v. State Farm Mutual Automobile Ins. Co., 5 Cir., 1962, 299 F.2d 525), I do not know. That question is not before me or the Court since the Government has not yet filed any motion for affirmative relief at this stage, either for summary judgment or otherwise. I intimate no judgment on these factual matters.
. See Judge Wisdom’s detailed analysis of this shibboleth in United States v. State of Louisiana, D.C.La. (3-Judge), 1963, 225 F.Supp. 353, 358.
. Chief Justice Taft in Bailey v. Drexel Furniture Co., 1922, 259 U.S. 20, 37, 42 S.Ct. 449. 66 L.Ed. 817.
. Affiliated Enterprises v. Waller, 1 Terry 28, 40 Del. 28, 5 A.2d 257, 261.