In re Wallace, 1487-N.

• Decision Date: 09 January 1959
• Docket Number: No. 1487-N.,1487-N.
• Citation: 170 F. Supp. 63
• Court: U.S. District Court — Middle District of Alabama
• Parties: In re George C. WALLACE, W. A. Stokes, Sr., Grady Rogers, E. P. Livingston, M. T. Evans, and J. W. Spencer.

170 F. Supp. 63

In re George C. WALLACE, W. A. Stokes, Sr., Grady Rogers, E. P. Livingston, M. T. Evans, and J. W. Spencer.

No. 1487-N.

United States District Court M. D. Alabama, N. D.

January 9, 1959.

COPYRIGHT MATERIAL OMITTED

John Patterson, Atty. Gen., of Alabama, E. L. Rinehart, Montgomery, Ala., (Ralph Smith, Jr., Montgomery, Ala., of counsel), for all respondents.

Chauncey Sparks, Archie Grubb, Preston C. Clayton and Seymore Trammell, Eufaula, Ala., for respondent George C. Wallace, Judge of the Third Judicial Circuit of Alabama.

Joseph F. Johnston, Birmingham, Ala., for Alabama State Bar, as amicus curiae.

Joseph M. F. Ryan, Jr., D. Robert Owen, Attys., Dept. of Justice, Washington, D. C., W. Wilson White, Asst. Atty. Gen., for the United States.

JOHNSON, District Judge.

This is the matter of civil action 1487-N, styled In re: George C. Wallace, W. A. Stokes, Sr., Grady Rogers, E. P. Livingston, M. T. Evans, and J. W. Spencer. This is an oral opinion and order in this matter upon the motion filed this date for further relief, filed upon behalf of the Attorney General of the United States by his attorneys and for the purposes of further specific relief in this cause, in accordance with paragraph four of the order entered herein January 5, 1959. The order made and entered in this cause by this Court on January 5, 1959, was presented to this Court by counsel for the United States, amicus curiae counsel appearing with the permission of this Court and at the request of the Alabama Bar Association, and counsel for George C. Wallace, W. A. Stokes, Sr., Grady Rogers, E. P. Livingston, M. T. Evans, and J. W. Spencer; several attorneys appearing and representing at that time George C. Wallace, including John Patterson, Chauncey Sparks, Preston C. Clayton, Seymore Trammell, and Archie Grubb. At the time said order was presented to this Court by all of said counsel, this Court, prior to accepting, signing, and filing said agreed-upon order, in response to inquiry by counsel for George C. Wallace, stated to said counsel, who were at that time appearing for and on behalf of George C. Wallace, that "the words `relevant to the Commission's inquiry'" meant the registration and voting records in the custody of the said George C. Wallace. This statement concerning relevancy of said records was accepted by George C. Wallace by and through his counsel, whom he elected to appear through without objection, and this Court was assured by all concerned that said agreement would be carried out fully and in good faith. Said agreed-upon order was executed and filed by this Court upon that basis. It now appears that the said George C. Wallace has not and still refuses to carry out the said agreement entered into with this Court by the counsel that he elected to appear before this Court through, even in the face of—and as this Court is advised— the advice by his counsel.

Now, upon consideration of said motions, including the motion now made by the Attorney General of the United States for further relief, and upon consideration of the statements made by counsel to the Court in chambers, upon consideration of the written briefs filed in support of said motions and in opposition thereto, this Court specifically finds that the Commission on Civil Rights is a temporary agency of the United States Government created by the Civil Rights Act of 1957, under Public Law 85-315, dated September 9, 1957, 42 U.S.C.A. § 1975 et seq.; that under Section 104(a) of that Act the Commission is empowered and directed to:

"(1) investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin; which writing, under oath or affirmation, shall set forth the facts upon which such belief or beliefs are based;

"(2) study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution; and

"(3) appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution."

The Act also empowers the Commission, or any authorized subcommittee thereof, to hold such public hearings and act at such times and places as the Commission may deem advisable. Said Act also empowers the Commission to require the attendance and testimony of witnesses or the production of written or other matters. That part of the Act that empowers the Commission, insofar as that is concerned, is Section 105(f).

In case of contumacy or refusal to obey a subpoena issued and caused to be served by the Commission, the Act confers jurisdiction upon "any district court of the United States * * * within the jurisdiction of which the inquiry is carried on * * * upon application by the Attorney General of the United States * * * to issue to such person an order requiring such person to appear before the Commission or a subcommittee thereof, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation; and any failure to obey such order of the court may be punished by said court as a contempt thereof." Reference is made to Section 105(g) of the Act.

The Commission's announcement made on October 23, 1958, set a public hearing to be held in Montgomery on December 8, 1958. It was further announced that said hearing would be to investigate complaints by certain citizens of the United States concerning deprivations of the right to vote by reason of race or color. It was on said date further announced that the voting and registration records of several counties of the State of Alabama would be sought. On October 21, 1958, two investigators for this Commission sought permission to inspect certain voting and registration records of Macon County, Alabama, and insofar as any comment this Court makes concerning the records of Macon County, Alabama, a provision made in the latter part of this order with reference to the voting and registration records in that County will reflect that the registrars of Macon County, Alabama, that is, Registrars Livingston and Rogers, and those records, are no longer in this case. This request was refused by the registrars who were then custodians of those records. It was publicly announced that the refusal was upon the advice of the Attorney General for the State of Alabama.

Prior to this hearing, by subpoenas served December 2, 3, and 4, 1958, the movants, as officials of the State of Alabama (and the movants' official positions are: W. A. Stokes, Sr., and J. W. Spencer, members of the Board of Registrars of Barbour County, Alabama; M. T. Evans, member of the Board of Registrars of Bullock County, Alabama; E. P. Livingston and Grady Rogers were members of the Board of Registrars of Macon County, Alabama; and George C. Wallace is Judge of Third Judicial Circuit of Alabama, comprising Barbour, Bullock, and Dale Counties) were ordered to appear on December 8, 1958, before the Commission at Montgomery and to produce certain voting and registration records and give testimony concerning the matters then under investigation. Five appeared before the Commission and refused to give testimony and failed to produce records. Movant Wallace failed to appear. This Court did, therefore, upon written verified application, with proper affidavits and documents attached thereto, issue its order of December 11, 1958 —an ex parte order.

The movants, with the exception of Livingston and Rogers who will be dismissed, by the motions now presented and under consideration by this Court contend:

(1) That enforcement of the subpoenas would constitute an illegal invasion of the sovereignty of the State of Alabama.

(2) That enforcement would violate the principle of comity.

(3) That enforcement would constitute an improper inquiry into judicial acts of judicial officers.

(4) That this Court is without jurisdiction to enforce compliance with said subpoenas.

(5) That Alabama law forbids removal of records sought from counties in which they are located, and also the records are too bulky and voluminous to produce, and also the records are privileged and confidential.

(6) That the movant-registrars no longer have custody of these records.

A somewhat detailed though combined discussion of these several points is considered necessary and appropriate.

The authority delegated to the Federal Government by the Fifteenth Amendment to the Constitution of the United States is undoubtedly the authority under which the Congress of the United States was acting when the Civil Rights Act of 1957 was passed. The provision in the Act providing for investigation of alleged discriminatory practices, including inspection of voting and other pertinent records, must be considered to be an essential step in the process of enforcing and protecting the right to vote regardless of color, race, religion, or national origin. That part of the Act is, therefore, by this Court considered "appropriate legislation" within the meaning of Section 2 of the Fifteenth Amendment.

The sovereignty of the State of Alabama, or of any other of the states, must yield, therefore, to this expression of the Congress of the United States, since this expression of Congress—by this Act—was passed in a proper exercise of a power specifically delegated to the Federal Government, and the Court cites Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717. This is necessarily true even though the states possess concurrent legislative jurisdiction with respect to voting, since the Federal Government, and its law, is supreme in this area. The Court cites Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449.

The concept of the sovereignty of the states is embodied in the Tenth Amendment to the Constitution of the United States, this amendment providing that those powers are reserved to the states which have not been "delegated to the...