Petitioner, a citizen of Illinois, brought this suit at law in the District Court for Northern Illinois against respondents, citizens of Illinois, to recover damages for infringement of his civil rights in violation of the Fourteenth Amendment and , , and (3), 8 U.S.C.A. §§ 41, 43, 47(3). He alleged that the suit was within the jurisdiction of the court as a suit arising under the Constitution and laws of the United States, (1), (1), a suit for the recovery of damages for injury to property and for deprivation of a right or privilege of a citizen of the United States, (12), 28 U.S.C.A. § 41 (12) and a suit for the recovery of damages for deprivation, under color of state law, custom, regulation or usage, of a right or privilege secured by the Fourteenth Amendment, (14), 28 U.S.C.A. § 41(14).
The complaint makes the following allegations. Petitioner was one of several candidates at the April 9, 1940, Republican primary election held in the Third Senatorial District of Illinois pursuant to Ill.Rev.Stat.1943 (State Bar Ass'n Ed.), Ch. 46, Art. 8 for nominees for the office of representative in the Illinois General Assembly. By reason of appropriate action taken respectively by the Republican and Democratic Senatorial Committees of the Third Senatorial District in conformity to the scheme of proportional representation authorized by Ill.Rev.Stat., Ch. 46, § 8-13, two candidates for representative in the General Assembly were to be nominated on the Republican ticket and one on the Democratic ticket. Since three representatives were to be elected, Ill.Const., Art. IV, §§ 7 and 8, Smith-Hurd Stats. and only three were to be nominated by the primary election, election at the primary as one of the two Republican nominees was, so the complaint alleges, tantamount to election to the office of representative.
The votes cast at the primary election were duly canvassed by the Canvassing Board of Cook County, which, as required by Ill.Rev.Stat., Ch. 46, § 8-15, certified and forwarded to the Secretary of State a tabulation showing the results of the primary election in the Third Senatorial District. By this tabulation the Board certified that petitioner and another had received respectively the second highest and highest number of votes for the Republican nominations. Ill.Rev.Stat., Ch. 46, § 8-13 requires that the candidates receiving the highest votes shall be declared nominated.
Respondents Hughes and Lewis and Henry Horner whose executors were joined as defendants and are respondents here, constituted the State Primary Canvassing Board for the election year 1940. By Ill.Rev.Stat., Ch. 46, § 8-15 it was made their duty to receive the certified tabulated statements of votes cast, including that prepared by the Canvassing Board of Cook County, to canvass the returns, to proclaim the results and to issue certificates of nomination to the successful candidates. such a certificate is a prerequisite to the inclusion of a candidate's name on the ballot. Ill.Rev.Stat., Ch. 46, § 10-14. Acting in their official capacity as State Primary Canvassing Board they issued, on April 29, 1940, their official proclamation which designated only one nominee for the office of representative in the General Assembly from the Third Senatorial District on the Republican ticket and excluded from the nomination petitioner, who had received the second highest number of votes for the Republican nomination.
After setting out these facts the complaint alleges that Horner and respondents Hughes and Lewis, 'willfully, maliciously and arbitrarily' failed and refused to file with the Secretary of State a correct certificate showing that petitioner was one of the Republican nominees, that they conspired and confederated together for that purpose, and that their action constituted 'an unequal, unjust and oppressive administration' of the laws of Illinois. It alleges that Horner, Hughes and Lewis, acting as state officials under color of the laws of Illinois, thereby deprived petitioner of the Republican nomination for representative in the General Assembly and of election to that office, to his damage in the amount of $50,000, and by so doing deprived petitioner, in contravention of , and (3), 8 U.S.C.A. §§ 41, 43, 47(3), of rights, privileges and immunities secured to him as a citizen of the United States, and of the equal protection of the laws, both guaranteed to him by the Fourteenth Amendment.