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tion of state law, but in the absence of any decision by the state court, this court may, in a case coming from the Federal courts, determine it for itself.

The suffrage and literacy tests in the amendment of 1910 to the constitution of Oklahoma are so connected with each other that the unconstitutionality of the former renders the whole amendment

invalid.

THE facts, which involve the constitutionality under the Fifteenth Amendment of the Constitution of the United States of the suffrage amendment to the constitution of Oklahoma, known as the Grandfather Clause, and the responsibility of election officers under § 5508, Rev. Stat., and § 19 of the Penal Code for preventing people from voting who have the right to vote, are stated in the opinion.

Mr. Joseph W. Bailey, with whom Mr. C. B. Stuart, Mr. A. C. Cruce, Mr. W. A. Ledbetter, Mr. Norman Haskell and Mr. C. G. Hornor were on the brief, for plaintiffs in error:

Determination of the constitutionality of the Grandfather Clause in the Oklahoma constitution, not being necessary to a full solution of this case, this court will not pass upon the constitutionality of such provision. Atwater v. Hassett, 111 Pac. Rep. 802; Bishop on Stat. Crime, §§ 805-806; Braxton County v. West Virginia, 208 U. S. 192; Burns v. State, 12 Wisconsin, 519; Devard v. Hoffman, 18 Maryland, 479; Liverpool Co. v. Immigration Commissioners, 113 U. S. 39; Mo., Kans. & Tex. Ry. v. Ferris, 179 U. S. 606; §§ 19, 20, Penal Code; § 5508,

Rev. Stats. (§ 19, Penal Code); Smith v. Indiana, 191 U. S. 139; Cruce v. Cease, 114 Pac. Rep. 251; New Orleans Canal Co. v. Heard, 47 La. Ann. 1679.

As to the nature of suffrage, see Jameson on Const. Conventions, § 336.

Suffrage in the States of the American Union is not controlled or affected by the Fourteenth Amendment to the Constitution of the United States. Blaine's Twenty Years in Congress; Brannon's Fourteenth Amendment, 77; Coffield v. Coryell, 4 Wash. C. C. 371; Miller's Lectures on Const., 661; Minor v. Happersett, 21 Wall. 162; Slaughter House Cases, 16 Wall. 36; Strauder v. West Virginia, 100 U. S. 303; 1 Willoughby's Constitution, 534; 2 Id. 483; 5 Woodrow Wilson's Hist. Am. People.

The Grandfather Clause does not violate the Fifteenth Amendment to the Constitution of the United States. Atwater v. Hassett, 111 Pac. Rep. 802; Dred Scott Case, 19 How. 393; Dodge v. Woolsey, 18 How. 371; Fairbanks v. United States, 181 U. S. 286; Fletcher v. Peck, 6 Cranch, 87; Mills v. Green, 67 Fed. Rep. 818; Mills v. Green, 69 Fed. Rep. 852; Mitchell v. Lippencott, 2 Woods, 372; McClure v. Owen, 26 Iowa, 253; McCreary v. United States, 195 U. S. 27; Pope v. Williams, 193 U. S. 621; Southern R. R. v. Orton, 6 Sawyer, 32 Fed. Rep. 478; State v. Grand Trunk R. R., 3 Fed. Rep. 889; Stimson's Fed. & State Const. 224; United States v. Reece, 92 U. S. 214; United States v. Cruickshank, 92 U. S. 542; United Slates v. Anthony, 11 Blatchf. 205; United States v. Des Moines, 142 U. S. 545; Webster v. Cooper, 14 How. 488; Williams v. Mississippi, 170 U. S. 214; Yick Wo v. Hopkins, 118 U. S. 356.

Even though the exemption privilege provided in the Grandfather Law may be invalid, yet, the body of the law may be permitted to stand. Albany v. Stanley, 105 U.S. 305; Trade Mark Cases, 100 U. S. 82; Little Rock &c. Ry. v. Worthen, 120 U. S. 97.

The exception does not deny or abridge the right to vote on account of race, color, or previous condition of servitude.

The purpose and motive which moved the legislature to submit and the people to adopt the amendment are not subject to judicial inquiry.

The exception which is challenged as vitiating the entire amendment, even if open to judicial inquiry, is valid, because it applies without distinction of race, color, or previous condition of servitude.

In support of these contentions, see Bailey v. Alabama, 219 U. S. 219; Cruce v. Cease, 28 Oklahoma, 271; Home Ins. Co. v. New York, 134 U. S. 594; McCray v. United States, 195 U. S. 27; Ratcliffe v. Beal, 20 So. Rep. 865; Smith v. Indiana, 191 U. S. 138; Soon Hing v. Crowley, 113 U. S. 703; United States v. Reese, 92 U. S. 214; Williams v. Mississippi, 170 U. S. 213; Yick Wo v. Hopkins, 118 U. S. 356.

Mr. Solicitor General Davis for the United States:

The questions propounded by the Circuit Court of Appeals are raised by the facts as certified and are indispensable to a determination of the cause.

The answer to the second question propounded by the court, is that the Grandfather Clause of the amendment to the constitution of Oklahoma of the year 1910 is void because it violates the Fifteenth Amendment.

The so-called Grandfather Clause incorporates by reference the laws of those States which in terms excluded negroes from the franchise on January 1, 1866, because of race, color, or condition of servitude, and so itself impliedly excludes them for the same reason.

The doctrine of incorporation by reference has been frequently enunciated and applied. Bank for Savings v. Collector, 3 Wall. 495; Donnelly v. United States, 228 U. S. 243; Ex parte Crow Dog, 109 U. S. 556; In re Heath,

144 U. S. 92; In re Hohorst, 150 U. S. 653; United States v. Le Bris, 121 U. S. 278; Viterbo v. Friedlander, 120 U. S. 707. See also: Endlich, Interp. Stats., § 492; Potter's Dwarris, pp. 190-192, 218; Sutherland, Statutes, 2d ed., $405.

What is implied in a statute is as much a part of it as what is expressed. Gelpcke v. Dubuque, 1 Wall. 175, 220; United States v. Babbit, 1 Black, 55, 61; Wilson County v. Third Nat. Bank, 103 U. S. 770, 778.

Whether at a given time a man was entitled to vote is a mixed question of law and fact, to be resolved only1 by consulting the law fixing the qualifications for suffrage and then the facts as to his possession of those qualifications.

While the Fifteenth Amendment did not confer the right of suffrage upon anyone, it did confer upon citizens of the United States from and after the date of its ratification the right not to be discriminated against in the exercise of the elective franchise on account of race, color, or previous condition of servitude. United States v. Reese, 92 U. S. 214; United States v. Cruikshank, 92 U. S. 542.

In all cases where the former slave-holding States had not removed from their constitutions the word "white" as a qualification for voting, the Fifteenth Amendment did in effect confer upon the negro the right to vote, because, being paramount to the state law, it annulled the discriminating word "white" and thus left him in the enjoyment of the same right as white persons. Ex parte Yarbrough, 110 U. S. 651; Neal v. Delaware, 103 U. S. 370.

If, therefore, the date fixed in the Grandfather Clause had been the year 1871-after the adoption of the Fifteenth Amendment-instead of the year 1866, the constitutions and laws to which it referred, and which were by such reference made a part of it, would have been already purged of the vice of racial discrimination, and

the amendment itself would have been likewise free from it. To reflect upon the change which would be wrought in the meaning of this Grandfather Clause by the substitution of the year 1871 for the year 1866 is to be confirmed in the conviction of its utter invalidity.

The necessary effect and operation of the Grandfather Clause is to exclude practically all illiterate negroes and practically no illiterate white men, and from this its unconstitutional purpose may legitimately be inferred.

The census statistics show that the proportion of negroes qualified under the test imposed by the Grandfather Clause is as inconsiderable as the proportion of whites thereby disqualified.

In practical operation the amendment inevitably discriminates between the class of illiterate whites and illiterate blacks as a class, to the overwhelming disadvantage of the latter.

The necessary effect and operation of a state statute or constitutional amendment may be considered in determining its validity under the Federal Constitution. Bailey v. Alabama, 219 U. S. 219; Ho Ah Kow v. Nunan, 5 Sawyer, 552; Home Insurance Co. v. New York, 134 U. S. 594, 598; Yick Wo v. Hopkins, 118 U. S. 356. See also: Brimmer v. Rebman, 138 U. S. 78, 82; Chy Lung v. Freeman, 92 U. S. 275, 278; Dobbins v. Los Angeles, 195 U. S. 223, 240; Henderson v. Mayor of N. Y., 92 U. S. 259, 268; Lochner v. New York, 198 U. S. 45, 64; McCray v. United States, 195 U. S. 27, 60. See also: Maxwell v. Dow, 176 U. S. 581; Minnesota v. Barber, 136 U. S. 313, 319; Missouri v. Lewis, 101 U. S. 22, 32; Quong Wing v. Kirkendall, 223 U. S. 59, 63. Distinguishing-Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703; and Williams v. Mississippi, 170 U. S. 213.

The answer to the first question propounded by the court is that the Grandfather Clause being in violation of the Fifteenth Amendment and void, the amendment of 1910

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