Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949) :: US LAW
Davis v. Schnell, eighty one F. Supp. 872 (S.D. Ala. 1949)
January 7, 1949
SCHNELL et al.
United States District Court S. D. Alabama, S. D.
*873 David R. Landau and George N. Leighton, each of Chicago, Ill., for plaintiffs.
A. A. Carmichael, Atty. Gen. of Alabama, Silas C. Garrett III, Asst. Atty. Gen. of Alabama, E. C. Boswell, of Geneva, *874 Ala., Ira B. Thompson, of Montgomery, Ala., Kenneth Griffith, of Cullman, Ala., and Carl M. Booth, Circuit Sol., of Mobile, Ala., for defendants.
Before McCORD, Circuit Judge, MULLINS and McDUFFIE, District Judges.
MULLINS, District Judge.
This case changed into tried before a duly constituted three-choose District Court.
Under the amended criticism, this in shape is introduced by way of ten Negro residents of Mobile County, Alabama, in opposition to the Board of Registrars of stated County and the individual members thereof, to declare and secure their rights to check in as electors. The plaintiffs carry the motion on their personal behalf, and on behalf of all Alabama residents similarly located.
The plaintiffs allege that registration is a prerequisite of the proper of a citizen of Alabama to vote in any election, Federal, State or neighborhood.
The plaintiffs allege that at a wellknown election hung on November 7, 1946, there has been submitted to and followed by way of the humans of Alabama an modification to Section 181 of the Constitution of Alabama (popularly referred to as and cited herein as the Boswell Amendment), converting the necessities for registration of electors in order that only the ones people who can "recognize and explain" any article of the Federal Constitution can be registered as electors. They allege that this change become purposely subsidized, its adoption obtained, and its provisions are being administered on the way to save you the plaintiffs and others, because of their race, from exercise their right to vote.
The plaintiffs aver that they seemed before the defendants, individuals of the Board of Registrars for Mobile County, Alabama, and, performing underneath colour of law, the defendants required the plaintiffs, all individuals of the Negro race, to explain an editorial of the Federal Constitution, which they did, and the defendants informed them that the defendants were now not glad with the reasons given, and refused to sign up them.
It is similarly averred that stated Section 181, as amended, requiring applicants for registration to "understand and explain" any article of the United States Constitution, collectively with the provisions of Title 17, Section 33, Code of Alabama 1940, vests inside the Board of Registrars limitless discretion to supply or deny the plaintiffs and others further situated the proper to check in as electors; that said Amendment provides no particular, reasonable or recognizable fashionable or take a look at to be applied in figuring out the qualifications of electors; that defendants refused to sign in plaintiffs and different certified Negro applicants, at the same time as on the same time defendants had been registering white applicants with much less qualifications; that plaintiffs, entirely because of *875 their race and coloration, have been required to make lengthy motives of articles of the Constitution of america, while white candidates had been being registered without being required to make this type of reasons.
Plaintiffs further allege that they possess all of the qualifications and have none of the disqualifications to sign in as electors, except that they may be not able to comply with or reasonably satisfy the defendants that they could comply with the requirements of the Boswell Amendment, which necessities they aver are void in that they're vague, unsure, undefined, and offer no discernible preferred; that said Amendment, without bringing up either race or colour, became adopted for the purpose and with the reason of the proponents thereof to create a scheme to save you certified Negroes from vote casting; that the qualification to "understand and provide an explanation for" any article of the Constitution is an insignificant subterfuge designed for the purpose of depriving plaintiffs and others of the proper of franchise due to race or coloration; that it has grow to be the overall and recurring exercise of the defendants, acting beneath coloration of regulation, to refuse to sign up Negro citizens of said county, including the plaintiffs, at the pretext that they are unable to "understand and explain" any article of the Federal Constitution. The plaintiffs further allege that they've been denied the proper to sign up as electors completely on account of their race or color.
The plaintiffs aver that an actual controversy exists between the plaintiffs and the defendants within the which means of Title 28, Section four hundred, United States Code (now Section 2201 of Revised Title 28, United States Code), in that the plaintiffs contend that Section 181 of the Constitution of Alabama, as amended, is unconstitutional on its face and due to the manner in which it is administered, as being violative of the provisions of the Fourteenth and Fifteenth Amendments and different provisions of the Constitution of the USA while the defendants contend that said Boswell Amendment is constitutional both on its face and inside the way in which it is administered.
Plaintiffs are seeking a declaratory judgment maintaining the Boswell Amendment unconstitutional and ask for injunctive alleviation against the in addition enforcement of the provisions of the same. Plaintiffs waived their prayer for damages.
The defendant board and two of the person participants thereof spoke back the complaint. They deny that the Boswell Amendment is unconstitutional and deny that they administer the registration laws in another way as to white and Negro applicants, and aver that they administer the legal guidelines fairly to all candidates for registration, with out regard to race or colour. They admit that the individual defendants compose the Board of Registrars of Mobile County; they admit that as a minimum three of the plaintiffs, Hunter Davis, Julius B. Cook, and Russell Gaskins, carried out to the board for registration and had been rejected; they aver that the facts of the board do now not reveal that any of the alternative plaintiffs ever applied to them for registration, and deny that any utility for registration has ever been refused as a consequence of race or color. They admit, and the Court finds, that an actual controversy exists among the plaintiffs and the defendants and that the contentions of the parties in regards thereto are appreciably said inside the amended grievance.
E. J. Gonzales, the 1/3 member of the defendant board, declined to join within the answer filed via the alternative defendants, stating that he couldn't be part of in all of the denials contained of their answer. He filed no formal answer, however testified and represented himself on the trial of the case.
Only of the plaintiffs, Hunter Davis and Julius B. Cook, testified on the trial. From the evidence we find that these plaintiffs provided themselves to the defendant board in search of to sign up as electors and that they supplied pleasant evidence in their qualifications to sign in as electors, but their applications were denied. The evidence suggests they had the residential qualifications prescribed by using Section 178 of the Constitution of Alabama, having continuously resided within the State of Alabama, inside the County of Mobile, and inside the precinct or ward wherein they lived *876 for extra than years right now preceding the time once they carried out for registration; that they had been over the age of twenty-one years, and have been frequently engaged in lawful employment, enterprise or occupation for the greater part of the one year subsequent preceding the time at which they supplied to register; that they're citizens of Alabama and of the US, of top man or woman, and own all different qualifications of electors, unless or not it's stated that they can be required to "recognize and explain" any article of the United States Constitution to the affordable pride of the individuals of the defendant board. These plaintiffs have none of the disqualifications set out in Section 182 of the Alabama Constitution.
We further locate from the proof that previous to the filing of this match said Board of Registrars required Negro candidates for registration as electors in Mobile County to attempt to explain as a minimum some article of the United States Constitution, even as no such requirement became exacted of white candidates. We additionally locate that the plaintiffs Davis and Cook were refused registration as electors because of their race or colour.
Prior to this healthy defendant board did now not maintain statistics of rejected applicants, whether or not white or Negro. The individuals of stated board went into workplace in October, 1947. Registration data of said board, which have been not disputed, have been delivered displaying that in their tenure, prior to March 1, 1948 (the filing date of this fit), 39 coloured applicants were registered; that next to March 1, 1948, sixty five colored candidates were registered and 57 had been rejected, the statistics of those fifty seven rejected candidates showing, in substance, that they had been rejected due to the fact they couldn't "apprehend and provide an explanation for" an article of the Federal Constitution. These information show that 3 white men and women who were registered after this motion become filed had been asked to give an explanation for a provision of the Federal Constitution. The facts of 11 rejected white candidates display that they have been denied registration on grounds apart from the necessities of the Boswell Amendment. The defendants provided nine colored witnesses, all of whom with one exception have been public school teachers of appropriate schooling, who testified that they were registered by way of the defendant board, some of them being asked if they could give an explanation for provisions of the Federal Constitution. The members of the defendant board generally required Negro candidates to give an explanation for or interpret provisions of the Federal Constitution, and did now not generally require white candidates to do so.
The proof indicates that in the incumbency of the defendant board that extra than 2800 white men and women had been registered and about 104 Negroes. The expected populace of Mobile County is 230,000 of which about sixty four in step with cent is white and 36 in line with cent is colored.
The States, not the Federal Government, prescribe the qualifications for the exercising of the franchise, and Federal Courts are not inquisitive about these qualifications unless they contravene the Fifteenth Amendment or different provisions of the USA Constitution. The States have a right to prescribe a literacy take a look at for electors. Guinn v. United States, 238 U.S. 347, 35 S. Ct. 926, fifty nine L. Ed. 1340, L.R.A.1916A, 1124. However, nation action which denies due method or same safety of the legal guidelines in the exercising of the proper of suffrage is illegal by the Fourteenth Amendment. Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759; Nixon v. Condon, 286 U.S. 73, fifty two S. Ct. 484, 76 L. Ed. 984, 88 A.L.R. 458. The Fifteenth Amendment guarantees the free exercise of the proper of franchise as against country discrimination based totally upon race or colour. Guinn v. United States, supra; Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L.Ed 1281.
The difficulty count number of the Boswell Amendment is within nation strength, and its validity relies upon upon whether or not it squares with the Fourteenth and Fifteenth Amendments. We suppose it does now not.
The original Section 181 of the Constitution of Alabama has stood for almost 50 years and has supplied precise standards for passing upon the qualifications of potential electors. The unique segment provided for 2 qualifications, the ownership of either of which changed into sufficient to allow registration. An applicant became required *877 on the way to "read and write any article of the constitution of the United States inside the English language," or within the alternative, he could qualify if he owned, assessed and paid taxes on real or non-public assets of an assessed value of $three hundred. The Boswell Amendment dropped the assets qualification, and followed a qualification requiring now not simplest that an applicant be capable of "read and write" but additionally that he be capable of "recognize and give an explanation for any article of the constitution of america inside the English language."
Do the phrases "understand and explain" as used in the Boswell Amendment provide an inexpensive widespread whereby forums of registrars may additionally skip on qualifications of prospective electors, or are those phrases so ambiguous, uncertain, and indefinite in that means that they confer upon stated boards arbitrary energy to sign up or to refuse to register whomever they please.
"Understand" is a word of many meanings and "a verb of very vast signification." Understanding can be based totally upon gaining knowledge of or know-how or upon rumor or rumour. It can also imply to understand, or to realise, partially or fully. It can also deal with that means, import, intention or motive. It can also suggest to realize the pressure or cost of a thing or proposition. It can also imply that someone is knowledgeable or that he had merely received notice or heard of something. To apprehend may mean to imply, infer or anticipate, or it may ponder understanding the meaning or the intended that means. It may additionally mean to interpret.
"Explain" is likewise a word of indefinite which means; it may mean to make undeniable, appear or intelligible; to clean of obscurity; to expound, to illustrate by using discourse or by notes.
The Boswell Amendment calls for a potential elector to "apprehend and provide an explanation for any article of the constitution of america in the English language." There isn't any requirement that the understanding or explanation be in writing. The language does no longer call for a easy, honest or affordable expertise or clarification. It does no longer say that the understanding and clarification ought to be partial, full, complete, exact, right, honest, affordable, undeniable, precise, accurate, correct, or deliver any rule, manual or test as to the nature of the understanding or clarification this is required. The Amendment does not say to whose delight the applicant should "recognize and give an explanation for," however under the statutes, it ought to be to the reasonable satisfaction of a majority of the contributors of one of the sixty seven forums of registrars that are provided for the sixty seven counties of Alabama.
The participants of those forums aren't required to be lawyers or discovered inside the regulation, and it is honest to count on that many contributors of those boards do not have an excellent or correct expertise of the numerous articles of the Constitution, and they won't be able to give any rationalization of lots of them. Many members of the boards of registrars may justly and properly say to an applicant for registration, "My legs do better understand me, sir, than I understand what you mean."
No uniform, goal or standardized check or examination is furnished wherein an unbiased board ought to decide whether the applicant has a reasonable information and may give an affordable explanation of the articles of the Constitution (if, certainly, the check were to be a affordable expertise and a affordable rationalization). If this kind of take a look at or exam were furnished to be administered to all potential electors alike, then the forums of registrars would have specific guides to govern their judgment in determining whether or no longer an applicant should "understand and explain" the provisions of the Constitution. Under this type of take a look at with proper questions or courses a document might be made which would deliver a rejected applicant a precise basis upon which he may want to are trying to find and achieve a right judicial assessment of the board s action, and the reviewing court might have something definite to behave upon in ascertaining whether an applicant were rightfully or arbitrarily and unjustly denied the right of suffrage.
As pointed out, "understand" may additionally suggest to interpret. This that means calls for an *878 extraordinarily excessive, if now not impossible, general. The prominent Justices of the Supreme Court of the United States have regularly disagreed of their interpretations of numerous articles of the Constitution. We analyze from records that among the makers of the Constitution did not recognize its provisions; a lot of them understood and believed that its provisions gave the Supreme Court no electricity to declare an act of Congress unconstitutional. An know-how or rationalization given through the Supreme Court a few years ago as to the which means of the trade clause does not practice nowadays. Among our maximum found out judges there are at least 4 exclusive understandings and explanations of the Fourteenth Amendment to the Constitution as to whether or not it made the first eight Amendments applicable to nation action. Such a rigorous standard to interpret is surely in the legitimate variety of the meanings of the word "recognize and explain," and illustrates the completeness with which any person or organization of prospective electors, whether white or Negro, may be disadvantaged of the proper of franchise via forums of registrars inclined to use this one of the innumerable meanings of such an indefinite word.
The words "understand and provide an explanation for" do not offer an inexpensive popular. A easy take a look at may be given one applicant; an extended, tedious, complex one to some other; one applicant may be tested on one article of the Constitution; any other may be called upon to "apprehend and give an explanation for" each article and provision of the whole instrument.
To state it evidently, the sole take a look at is: Has the applicant with the aid of oral examination or in any other case understood and defined the Constitution to the pride of the specific board? To state it greater it appears that evidently, the board has a right to reject one applicant and accept some other, depending completely upon whether it likes or dislikes the knowledge and rationalization offered. To country it even greater plainly, the board, by means of using the phrases "understand and give an explanation for," is given the arbitrary power to just accept or reject any prospective elector that can follow, or, to use the language of Yick Wo v. Hopkins, 118 U.S. 356, 366, 6 S. Ct. 1064, 1069, 30 L. Ed. 220, these words "surely do confer, no longer a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to present or withhold consent * * *." The board has the power to set up training, those to whom they consent and people to whom they do no longer those who may additionally vote and people who may not. Such arbitrary electricity amounts to a denial of same protection of the regulation inside the that means of the Fourteenth Amendment to the Constitution, and is condemned through the Yick Wo and lots of other choices of the Supreme Court.
When a word or word in a statute or constitution is ambiguous, it's far the obligation of the court docket, in construing the meaning of that phrase or phrase, to attempt to determine whether an specific which means changed into meant and if so, to examine that that means. If an precise that means of the phrase "recognize and provide an explanation for" were to be observed by a method of production in this situation, it is probably that a suitable and definite general can be determined, which could now not supply to the board of registrars arbitrary electricity. However, a careful attention of the legislative and different history of the adoption of this Amendment to the Constitution of Alabama discloses that the ambiguity inherent in the word "understand and explain" cannot be resolved, but, at the opposite, was useful and used with a view of assembly the selection of the Supreme Court of america in Smith v. Allwright, 321 U.S. 649, sixty four S. Ct. 757, 88 L. Ed. 987, 151 A.L.R. 1110. The history of the period right away previous the adoption of the Boswell Amendment, of which we take judicial notice, and the proof in this situation show this.
The State Democratic Executive Committee is an respectable arm of the State and its movement constitutes state action. Smith v. Allwright, supra. The activities *879 of this committee in sponsoring and leading the combat for the adoption of the Boswell Amendment are admissible and cloth in figuring out whether the Boswell Amendment is a contrivance by way of the State to thwart equality inside the enjoyment of the proper to vote with the aid of residents of america as a result of race or shade.
The State Democratic Executive Committee spent its funds and led the combat to stable the adoption of the Boswell Amendment in its undertaking "to make the Democratic Party in Alabama the `White Man s Party. " The chairman of this committee was instrumental in originating the Amendment and in making suggestions to the legislative committee as to adjustments he deemed really useful in Alabama s election laws to meet the "Texas case," below which Democratic primaries could no longer be restrained to white electorate. An overwhelming majority of the membership of this committee "took the location that we ought to be Militant Democrats and retain to combat for white supremacy in our State."
The seventy two members of this State Committee were advised to touch the participants of the county Democratic executive committees, a few 2500 in wide variety, and all of the general election officers, some 14,000 in variety, to secure their guide inside the campaign for the adoption of the Boswell Amendment, on the basis that the purpose of the Boswell Amendment changed into to restriction Negro registration.
In the Alabama Lawyer, the legitimate organ of the State Bar of Alabama, within the July 1946 issue, a outstanding Alabama lawyer, writing in competition to the adoption of the Boswell Amendment, which turned into at that time watching for action at the hands of the human beings of Alabama, said:
"Let us be frank and honest with ourselves. You and I understand that the humans of our State are expected to adopt this Amendment to be able to deliver the Registrars arbitrary energy to exclude Negroes from voting."
In the October 1946 difficulty of the identical legitimate publication, an similarly outstanding Alabama lawyer, who favored the adoption *880 of the Boswell Amendment, declared with regards to that Amendment:
"* * * I earnestly prefer a regulation as a way to make it not possible for a Negro to qualify, if this is viable. If it's far not possible, then I favor a regulation, greater specifically a constitutional provision, so as to come as near as viable, making viable, the impossible."
All of the foregoing but illustrates the aim and fashionable information of the Legislature and citizens of Alabama on the time this Amendment turned into proposed and followed through a small majority of a mild vote. Such a history further demonstrates that this restrictive Amendment, coming at the heels of the decision of the Supreme Court of america in the Smith v. Allwright case, changed into supposed as a grant of arbitrary energy in an try to obviate the outcomes of that selection.
Thus, the process of tried creation of an ambiguous phrase by means of connection with legislative history and to the cause of the makers of the phrase in this instance best reinforces the belief that the provision in question turned into integrated for the purpose of permitting arbitrary motion, and not for the purpose of presenting a specific and affordable preferred.
The defendants argue that the Boswell Amendment isn't always "racist in its beginning, purpose or impact," but, as has already been illustrated, a cautious attention of the conditions existing on the time, and of the instances and records surrounding the foundation and adoption of the Boswell Amendment, and its next utility, demonstrate that its fundamental object became to restrict vote casting on a foundation of race or colour. That its cause became such is in addition illustrated by means of the campaign material that become used to secure its adoption.
The Alabama Democrat, a marketing campaign file within the shape of a newspaper posted in guide of the adoption of the Boswell Amendment consisted in its entirety of arguments urging the citizens to undertake the Amendment for the purpose of limiting vote casting with the aid of Negroes. This document carried the headline: "WARNING IS SOUNDED: BLACKS WILL TAKE OVER IF AMENDMENT LOSES" and the footline: "VOTE WHITE VOTE RIGHT VOTE FOR AMENDMENT NO. 4."
Similarly, an editorial of the Talladega Home, reproduced in stated report, asked the question: "What is the Boswell Amendment?" and spoke back the query with the aid of saying, "It is a measure designed truly and totally to allow registrars legally to keep down the range of Negro registrants."
Furthermore, the management of the Boswell Amendment by means of the defendant board demonstrates that the ambiguous wellknown prescribed has, in reality, been arbitrarily used for the reason of with the exception of Negro applicants for the franchise, at the same time as white candidates with comparable qualifications were being familiar. The evidence is without dispute that this Amendment has been used to disqualify many Negro candidates for registration even as it does no longer sincerely expose that it's been used to disqualify a single white applicant. It is in addition shown that most commonly the Boswell take a look at of "recognize and give an explanation for" is required of Negroes while no such exaction is made of white applicants.
It, for this reason, certainly seems that this Amendment changed into intended to be, and is being used for the cause of discriminating against candidates for the franchise on the idea of race or color. Therefore, we're necessarily delivered to the belief that this Amendment to the Constitution of Alabama, both in its item and the manner of its administration, is unconstitutional, because it violates the Fifteenth Amendment. While it's far real that there may be no point out of race or color within the Boswell Amendment, this doesn't save it. The Fifteenth Amendment "nullifies sophisticated in addition to simple-minded modes of discrimination," and "It hits arduous procedural requirements which correctly handicap exercising of the franchise with the aid of the colored race although the summary proper to vote can also remain unrestricted as to race." Lane v. Wilson, 307 U.S. 268, 275, fifty nine S. Ct. 872, 876, 83 L. Ed. 1281. Cf. Smith v. Allwright, supra; Guinn v. United States, supra.
*881 We can't ignore the effect of the Boswell Amendment upon Negro citizens as it avoids point out of race or color; "To try this might be to close our eyes to what all others than we will see and understand."
The Amendment being unconstitutional, the plaintiffs are entitled to injunctive remedy.
McCORD, Circuit Judge, and McDUFFIE, District Judge, concurring.NOTES
 Title 17, Section 12, Code of Alabama 1940, so offers.
 Section 181 of the Constitution of Alabama, as amended:
"After the primary day of January, nineteen hundred and three, the following men and women, and no others, who, if their area of residence shall continue to be unchanged, could have, on the date of the following trendy election, the qualifications as to house, prescribed in section 178 of this newsletter, shall be qualified to sign in as electors provided they shall now not be disqualified below phase 182 of this constitution: those who can study and write, recognize and give an explanation for any article of the charter of the United States in the English language and who are bodily not able to work and people who can study and write, understand and explain any article of the constitution of america in the English language and who have worked or been often engaged in some lawful employment, business, or career, exchange, or calling for the more part of the one year subsequent previous the time they provide to register, such as those who are unable to study and write if such incapability is due totally to bodily disability; furnished, but, no persons shall be entitled to sign in as electors besides those who are of desirable individual and who apprehend the obligations and duties of appropriate citizenship under a republican form of presidency." [Amend. No. 55].
 Title 17, Section 33, Code of Alabama 1940:
"Any character making application to the board of registrars for registration who fails to set up via evidence to the reasonable delight of the board of registrars that he or she is certified to sign in, can be refused registration."
 Dearing, Sink & Co. v. Smith & Wright, 4 Ala. 432, 438.
 See Note (3) above.
 Title 17, Section 21, Code of Alabama 1940.
 Cf. Adamson v. California, 1947, 332 U.S. forty six, sixty seven S. Ct. 1672, 91 L. Ed. 1903, 171 A.L.R. 1223.
 The State Democratic Executive Committee is the professional governing frame of the Democratic birthday celebration in Alabama; its individuals are elected with the aid of the voters in Democratic primaries. Cf. Title 17, Section 341, Alabama Code of 1940. Said committee is authorized to prescribe regulations and regulations governing matters of birthday party method. Title 17, Section 389. It has the authority to determine who shall be qualified as individuals and candidates for nomination, who shall be entitled to vote in primary elections, and to repair tests to be paid by using applicants for nomination at a primary election. Title 17, Section 347. Compensation of officials and expenses of all number one elections are paid out of the county or municipal treasury in the equal way and to the identical quantity as furnished for the price of prices and officials of widespread elections held below the general election laws of Alabama. Title 17, Section 343. Section 190 of the Alabama Constitution affords that the legislature shall make provision with the aid of law for the regulation of number one elections, however offers that number one elections shall no longer be made obligatory.
 In a letter dated August 27, 1946, addressed to the participants of the State Democratic Executive Committee, the chairman of that committee, amongst different matters, said:
"forty five ballots were solid in desire of the State Committee expending up to $3,500.00 in a compaign to have the `Boswell Amendment adopted, 7 ballots were solid in opposition to such expenditure, and 1 poll was now not voted. * * *
"I may add that even as some participants of our State Committee have expressed the thought that the price range of the State Committee need to no longer be expended in a marketing campaign either for or towards the adoption of the proposed `Boswell Amendment, yet the top notch majority of the participants of our Committee have taken the placement that since the logo of our Party is a crowing poultry with the words `White Supremacy above the poultry, and the words `For the Right beneath the chicken, that it's miles entirely right that the State Democratic Executive Committee have to lead the combat to keep the traditions of our Party on this State by adopting the proposed amendment to our Constitution and endeavoring, as some distance as it can legally be performed, to make the Democratic Party in Alabama the `White Man s Party. "
(From Plaintiffs Exhibit five)
 Plaintiffs Exhibit 7.
 Plaintiffs Exhibit 6.
 Plaintiffs Exhibit eight.
 United States v. Butler, 297 U.S. 1, sixty one, fifty six S. Ct. 312, 317, 80 L. Ed. 477, 102 A.L.R. 914.