Moines, 142 U. S. 545; Webster v. Cooper, 14 How. 488; Williams v. Mississippi, 170 U. S. 211; 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 bridge 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 Hohort, 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 only 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 slaveholding 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 con firmed in the conviction of its utter invalidity. The necessary effect and operation of The census statistics show that the pro- In practical operation the amendment The necessary effect and operation of See also: Maxwell v. Dow, 176 U. S. The answer to the first question pro- The fist question certified by the Circuit Mr. Moorfield Storey for the National All discriminations respecting the right Whether the Oklahoma amendment The undoubted purpose and effect of Mr. J. H. Adriaans filed a brief as Mr. John H. Burford and Mr. John MR. CHIEF JUSTICE WHITE delivered This case is before us on a certificate by the Fifteenth Amendment to the Constitution of the United States. The prosecution was directly concerned with § 5508, Rev. Stat., now § 19 of the Penal Code which is as follows: "If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoy ment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States." We concentrate and state from the certificate only matters which we deem essential to dispose of the questions asked. Suffrage in Oklahoma was regulated by § 1, Article III of the Constitution under which the State was admitted into the Union. Shortly after the admission there was submitted an amendment to the Constitution making a radical change in that article which was adopted prior to November 8, 1910. At an election for members of Congress which followed the adoption of this Amendment certain election officers in enforcing its provisions refused to allow certain negro citizens to vote who were clearly entitled to vote under the provision of the Constitution under which the State was admitted, that is, before the amendment, and who, it is equally clear, were not entitled to vote under the provision of the suffrage amendment if that amendment governed. The persons so excluded based their claim of right to vote upon the original Constitution and upon the assertion that the suffrage amendment was void because in conflict with the prohibitions of the Fif teenth Amendment and therefore afforded no basis for denying them the right guaranteed and protected by that Amendment. And upon the assumption that this claim was justified and that the election officer had violated the Fifteenth Amendment in denying the right to vote, this prosecution, as we have said, was commenced. At the trial the Court instructed that by the Fifteenth Amendment the States were prohibited from discriminating as to suffrage because of race, color, or previous condition of servitude and that Congress in pursuance of the authority which was conferred upon it by the very terms of the Amendment to enforce its provisions had enacted the following (Rev. Stat., § 2004): * * * "All citizens of the United States who are otherwise qualified by law to vote at any election by the people of any State, Territory, district, * municipality, * * or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary nothwithstanding." It then instructed as follows: "The State amendment which imposes the test of reading and writing any section of the State constitution as a con dition to voting to persons not on or prior to January 1, 1866, entitled to vote under some form of government, or then resident in some foreign nation, or a lineal descendant of such person, is not valid, but you may consider it in so far as it was in good faith relied and acted upon by the defendants in ascertaining their intent and motive. If you believe from the evidence that the defendants formed a common design and co-operated in denying the colored voters of Union Township precinct, or any of them, entitled to vote, the privilege of voting, but this was due to a mistaken belief sincerely entertained by the defendants as to the qualifications of the voters-that is, if the motive actuating the defendants was honest, and they simply erred in the conception of their duty-then the criminal intent requisite to their guilt is wanting and they cannot be convicted. On the other hand, if they knew or believed these colored persons were entitled to vote, and their purpose was to unfairly and fraudulently deny the right of suffrage to them, or any of them entitled thereto, on account of their race and color, then their purpose was a corrupt one, and they cannot be shielded by their official positions." The questions which the Court below asks are these: "1. Was the amendment to the constitution of Oklahoma, heretofore set forth, valid? "2. Was that amendment void in so far as it attempted to debar from the right or privilege of voting for a qualified candidate for a Member of Congress in Oklahoma, unless they were able to read and write any section of the constitution of Oklahoma, negro citizens of the United States who were otherwise qualified to vote for a qualified candidate for a Member of Congress in that State, but who were not, and none of whose lineal ancestors was, entitled to vote under any form of government on January 1, 1866, or at any time prior thereto, because they were then slaves?" As these questions obviously relate to the provisions concerning suffrage in the original constitution and the amendment to those provisions which forms the basis of the controversy, we state the text of both. The original clause so far as material was this: "The qualified electors of the State shall be male citizens of the United States, male citizens of the State, and male persons of Indian descent native of the United States, who are over the age of twenty-one years, who have resided in the State one year, in the county six months, and in the election precinct thirty days, next preceding the election at which any such elector offers to vote." And this is the amendment: "No person shall be registered as an elector of this State or be allowed to vote in any election herein, unless he be able to read and write any section of the constitution of the State of Oklahoma; but no person who was, on January 1, 1866, or at any time prior therto, entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his inability to so read and write sections of such con stitution. Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of registration, provided registration be required. Should registration be dispensed with, the provisions of this section shall be enforced by the precinct election officer when electors apply for ballots to vote." Considering the questions in the light. of the text of the suffrage amendment it is apparent that they are twofold because of the twofold character of the provisions as to suffrage which the amendment contains. The first question is concerned with that provision of the amendment which fixes a standard by which the right to vote is given upon conditions existing on January 1, 1866, and relieves those coming within that standard from the standard based on a literacy test which is established by the other provision of the amendment. The second question asks as to the validity of the literacy test and how far, if intrinsically valid, it would continue to exist and be operative in the event the standard based upon January 1, 1866, should be held to be illegal as violative of the Fifteenth Amendment. To avoid that which is unnecessary let us at once consider and sift the propositions of the United States on the one hand and of the plaintiffs in error on the other, in order to reach with precision the real and final question to be considered. The United States insists that the provision of the amendment which fixes a standard based upon January 1, 1866, is repugnant to the prohibitions of the Fifteenth Amendment because in substance and effect that provision, if not an express, is certainly an open repudiation of the Fifteenth Amendment and hence the provision in question was stricken with nullity in its inception by the self-operative force of the Amendment, and as the result of the same power was at all subsequent times devoid of any vitality whatever. For the plaintiffs in error on the other hand it is said the States have the power to fix standards for suffrage and that power was not taken away by the Fifteenth Amendment but only limited to the Amendment established. This being true, extent of the prohibitions which that as the standard fixed does not in terms make any discrimination on account of ace, color, or previous condition of servitude, since all, whether negro or white, who come within its requirements enjoy the privilege of voting, there is no ground upon which to rest the contention that the provision violates the Fifteenth Amendment. This, it is insisted, must be the case unless it is intended to expressly deny the State's right to provide a standard for suffrage, or what is equivalent thereto, to assert: a, that the judgment of the state exercised in the exertion of that power is subject to Federal judicial review or supervision, or b, that it may be questioned and be brought within the prohibitions of the Amendment by attributing to the legislative authority an occult motive to violate the Amendment or by assuming that an exercise of the otherwise lawful power may be invalidated because of conclusions concerning its operation in practical exertion and resulting discrimination arising therefrom, albeit such discrimination was not expressed in the standard fixed or fairly to be implied but simply arose from inequalities naturally inhering in those who must come within the standard in order to enjoy the right to vote. On the other hand the United States denies the relevancy of these contentions. It says State power to provide for suffrage is not disputed, although, of course, the authority of the Fifteenth Amendment and the limit on that power which it imposes is insisted upon. Hence, no assertion denying the right of a State to exert judgment and discretion in fixing the qualification of suffrage is advanced and no right to question the motive of the State in establishing a standard as to such subjects under such circumstances or to review or supervise the same is relied upon and no power to destroy an otherwise valid exertion of authority upon the mere ultimate operation of the power exercised is asserted. And applying these principles to the very case in hand the argument of the Government in substance says: No question is raised by the Government concerning the validity of the literacy test provided for in the amendment under consideration as an independent standard since the conclusion is plain that that test rests on the exercise of state judgment and therefore cannot be here assailed either by disregarding the State's power to judge on the subject or by testing its motive in enacting the provision. The real question involved, so the argument of the Government insists, is the repugnancy of the standard which the amendment makes, based upon the conditions existing on January 1, 1866, because on its face and inherently consider ing the substance of things that standard con is a mere denial of the restrictions imposed by the prohibitions of the Fifteenth Amendment and by necessary result recreates and perpetuates the very ditions which the Amendment was intended to destroy. From this it is urged that no legitimate discretion could have entered into the fixing of such standard which involved only the determination to directly set at naught or by indirection avoid the commands of the Amendment. And it is insisted that nothing contrary to these propositions is involved in the contention of the Government that if the standard which the suffrage amendment fixes based upon the conditions existing on January 1, 1866, be found to be void for the reasons urged, the other and literacy test is also void, since that contention rests, not upon any assertion on the part of the Government of any abstract repugnancy of the literacy test to the prohibitons of the Fifteenth Amendment, but upon the relation between that test and the other as formulated in the suf frage amendment and the inevitable result which it is deemed must follow from holding it to be void if the other is so declared to be. Looking comprehensively at these contentions of the parties it plainly results that the conflict between them is much narrower than it would seem to be because the premise which the arguments of the plaintiffs in error attribute to the propositions of the United States is by it denied. On the very face of things it is clear that the United States disclaims the gloss put upon its contentions by limiting them to the propositions which we have hitherto pointed out, since it rests the contentions which it makes as to the assailed provision of the suffrage amendment solely upon the ground that it involves an unmistakable, although it may be a somewhat disguised, refusal to give effect to the prohibitions of the Fifteenth Amendment by creating a standard which it is repeated but calls to life the very conditions which that Amendment was adopted to destroy and which it had destroyed. The questions then are: (1) Giving to the propositions of the Government the interpretation which the Government puts upon them and assuming that the suffrage provision has the significance which the Government assumes it to have, is that provision as a matter of law |