276

DOUGLAS, J., dissenting.

should not exercise its equity powers in that election, are lacking here. There is time to act, since the state primary is called for June 28, 1950. Relief can be certain. No conflict with any policy of Congress is possible. There is no overhauling of the State's electoral process.

The case is of greater importance than the rights of plaintiffs in this next election may appear to be. We have here a system of discrimination in primary voting that undermines the advances made by the Nixon, Classic, and Allwright cases. Those decisions are defeated by a device as deeply rooted in discrimination as the practice which keeps a man from the voting booth because of his race, creed or color, or which fails to count his vote after it has been cast.

It is said that the dilution of plaintiffs' votes in the present case is justified because equality of voting is unnecessary in the nomination of United States Senators. Thus it is pointed out that in some states nomination is by conventions. But that proves too much. If that premise is allowed, then the whole ground is cut from under our primary cases since Nixon v. Herndon, which have insisted that where there is voting there be equality. Indeed the only tenable premise under the Fourteenth, Fifteenth and Seventeenth Amendments is that where nominations are made in primary elections, there shall be no inequality in voting power by reason of race, creed, color or other invidious discrimination.

339 U.S.

Opinion of REED, J.

CASSELL v. TEXAS.

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.

No. 46. Argued November 10, 1949.—Decided April 24, 1950. Petitioner, a Negro, was convicted in a Texas state court for murder, notwithstanding his motion to quash the indictment on the ground that his rights under the Fourteenth Amendment had been violated by the exclusion of Negroes from the grand jury. The jury commissioners testified that no Negroes were selected for the grand jury because they chose jurymen only from people with whom they were personally acquainted and they knew no Negroes who were eligible and available for grand-jury service. It also appeared from the record that, from 1942, when Hill v. Texas, 316 U. S. 400, was decided, until petitioner's indictment in 1947, there had been 21 grand juries on none of which was there more than one Negro, that of the 252 members 17 (or 6.7%) were Negroes, and that about 15.5% of the population of the county and 6.5% of the eligible voters were Negroes. Held: The conviction is reversed. Pp. 282-298. 154 Tex. Cr. R. 216 S. W. 2d 813, reversed.

The Texas Court of Criminal Appeals affirmed petitioner's conviction for murder. 154 Tex. Cr. R. —, 216 S. W. 2d 813. This Court granted certiorari. 336 U. S. 943. Reversed, p. 290.

Chris Dixie argued the cause for petitioner. With him on the brief were L. N. D. Wells, Jr. and W. J. Durham.

Joe R. Greenhill, First Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Price Daniel, Attorney General, and E. Jacobson, Assistant Attorney General.

MR. JUSTICE REED announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE CLARK concurred.

Review was sought in this case to determine whether there had been a violation by Texas of petitioner's federal constitutional right to a fair and impartial grand jury.

J

The federal question was raised by a motion to quash the indictment on the ground that petitioner, a Negro, suffered unconstitutional discrimination through the selection of white men only for the grand jury that indicted him. After full hearing, the trial court denied the motion, and this action was sustained by the Court of Criminal Appeals of Texas in affirming petitioner's conviction. Cassell v. State, 154 Tex. Cr. R., 216 S. W. 2d 813.

The Court of Criminal Appeals accepted the federal rule that a Negro is denied the equal protection of the laws when he is indicted by a grand jury from which Negroes as a race have been intentionally excluded. Cassell v. State, supra, 154 Tex. Cr. R. at ———, 216 S. W. 2d at 819; Neal v. Delaware, 103 U. S. 370, 394; Smith v. Texas, 311 U. S. 128, 130; Hill v. Texas, 316 U. S. 400, 404; Akins v. Texas, 325 U. S. 398, 403. It was from an examination of facts that the court deduced its conclusion that racial discrimination had not been practiced. Since the result reached may deny a federal right, we may reexamine the facts to determine whether petitioner has sustained by proof his allegation of discrimination. Certiorari was granted (336 U. S. 943) to consider petitioner's claim that in this case Negroes were omitted from the list of grand jurymen either because of deliberate limitation by the Dallas County jury commissioners, or because of failure by the commissioners to acquaint themselves with available Negroes.

2

Acting under the Texas statutes, the Dallas County grand-jury commissioners chose a list of sixteen males 3

1 Norris v. Alabama, 294 U. S. 587, 590; Pierre v. Louisiana, 306 U. S. 354, 358; Smith v. Texas, 311 U. S. 128, 130; Fay v. New York, 332 U.S. 261, 272.

2 Texas Code of Criminal Procedure (Vernon, 1948), Arts. 333340.

3 Id., Art. 338. Under the Texas Constitution and statutes, women may not serve on Texas juries. Texas Constitution, Art. 5, § 13; Harper v. State, 90 Tex. Cr. R. 252, 234 S. W. 909.

for this September 1947 grand jury from citizens eligible under the statute. The judge chose twelve of these for the panel. No challenge is now made to the fairness of this statutory system. We have approved it."

Petitioner's attack is upon the way the statutory method of grand-jury selection has been administered by the jury commissioners. One charge is that discrimination must have been practiced because the Negro proportion of grand jurors is less than the Negro proportion of the county's population. Under the 1940 census the total population of Dallas County was 398,564, of whom 61,605 were Negroes. This is about 15.5%. In

4 Texas Code of Criminal Procedure (Vernon, 1948): "Art. 339. . . . No person shall be selected or serve as a grand juror who does not possess the following qualifications:

"1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.

"2. He must be a freeholder within the State, or a householder within the county.

"3. He must be of sound mind and good moral character.

"4. He must be able to read and write.

"5. He must not have been convicted of any felony.

"6. He must not be under indictment or other legal accusation for theft or of any felony."

5 Id., Art. 357.

Smith v. Texas, supra, p. 130. See Zimmerman v. State, 59 A. 2d 675, 676-77, affirmed under title Zimmerman v. Maryland, 336 U. S. 901; Fay v. New York, 332 U. S. 261, 266, 272; Morse, A Survey of the Grand Jury System, Part II, 10 Ore. L. Rev. 217, 226239.

There is no suggestion in the case that any judge of the county trial courts discriminated against Negroes in his selection from the lists of the members for the grand juries.

8 Sixteenth Census of the United States: 1940, Population, Volume II, Part 6, p. 795.

11

weighing this matter of custom, we limit ourselves, as do the parties, to the period between June 1, 1942, when Hill v. Texas, supra, was decided, and November 1947, when petitioner was indicted. There were 21 grand juries in this period; of the 252 members of the panels," 17, or 6.7%, were Negroes. But this apparent discrepancy may be explained by the fact that Texas grand jurors must possess certain statutory qualifications.1 Grand jurors must ordinarily be eligible to vote; eligibility requires payment of a poll tax; and the validity of the poll-tax requirement is not challenged. The record shows 5,500 current Negro polltax payers in Dallas County in 1947, and nothing indicates that this number varied substantially from year to year.12 The corresponding figure for all poll-tax payers, male and female, is 83,667.13 These figures would indicate that as a proportional matter 6.5% of grand jurors would be Negroes, a percentage approximating the ratio of Negroes actually sitting on the 21 grand jury panels." Without

9 We use the word "panel" to mean the grand jury which is the final result of the statutory procedure. See Texas Code of Criminal Procedure, Art. 360. The record does not indicate the number of Negroes who were placed on the lists of sixteen, but did not serve. All that appears in this connection is that no Negroes were placed on the list in this case.

19 See note 4, supra.

11 Texas Constitution, Art. 6, § 2; Vernon's Texas Statutes, 1948, Art. 2955; Conklin v. State, 144 Tex. Cr. R. 210, 162 S. W. 2d 416. 12 There is some obscurity in the record as to whether the above figure of Negro poll-tax payers refers to males only or to men and women. 154 Tex. Cr. R. 216 S. W. 2d 813, 816, 819. The testimony and the statistics in the briefs cause us to conclude that the figure refers to all eligible Negro voters.

13 Texas Almanac, 1947-1948, p. 421.

14 In our computations we have used statistics which include both men and women, because in many cases statistical breakdowns in terms of sex are not available. Although only men may serve on the grand juries, the use of totals including both sexes should make for only minor variations in the percentages.