United States v. State of Alabama

• Decision Date: 16 June 1959
• Docket Number: No. 17684.,17684.
• Citation: 267 F.2d 808
• Parties: UNITED STATES of America, Appellant, v. STATE OF ALABAMA et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

267 F.2d 808 (1959)

UNITED STATES of America, Appellant, v. STATE OF ALABAMA et al., Appellees.

No. 17684.

United States Court of Appeals Fifth Circuit.

June 16, 1959.

W. Wilson White, Asst. Atty. Gen., Harold H. Greene, Atty., Dept. of Justice, Civil Right Division, Washington, D. C., Hartwell Davis, U. S. Atty., Montgomery, Ala., Joseph M. F. Ryan, Jr., Atty., Department of Justice, Washington, D. C., for appellant.

Nicholas S. Hare, Asst. Atty. Gen., Gordon Madison, Asst. Atty. Gen., MacDonald Gallion, Atty. Gen., Willard Livingston, Asst. Atty. Gen., for appellees.

Charles J. Bloch, Macon, Ga., Lawrence K. Andrews, Union Springs, Ala., Julian Eugene Cook, Atlanta, Ga., amici curiæ.

Before HUTCHESON, Chief Judge, and CAMERON and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

This appeal tests for error the order of the district judge dismissing the complaint as to all the defendants for the reasons stated in his opinion¹ as to each.

This is the record. On February 5, 1959, the United States of America, appellant, filed an action against appellees Grady Rogers, E. P. Livingston, and the Registration Board of Macon County, Alabama. This action was brought under Part IV of the Civil Rights Act of 1957 (P.L. 85-315, 71 Stat. 634, 42 U.S. C.A. § 1971)² to obtain preventive relief against certain act and practices which deprive citizens of their right to vote on account of race or color.

The complaint specifically alleged the following facts. The appellees, the Registration Board and Rogers and Livingston, sued as members, who, under Alabama law are responsible for registering qualified citizens for voting, have engaged in certain discriminatory acts and practices. Among those practices are the maintenance of separate and segregated registration facilities for negroes; the application of more stringent and more rigid registration standards to negroes than to whites; and various other acts and practices which clearly set forth denial of registration to vote solely on account of race or color. Such discriminatory acts and practices have brought about and perpetuated a great disparity between the respective percentages of white and negro citizens of voting age registered to vote in Macon County, Alabama, despite the fact that negro citizens of voting age in Macon Countly greatly outnumber white citizens of voting age.³

Appellees Rogers and Livingston, who are not before the court as individuals but only as members of the Board of Registration, resigned as registrars of Macon County in Dec., 1958, some two months before this suit was filed. Their resignations were absolute and unconditional, and it was shown by affidavits, depositions and documents, that neither intended to serve again as a member of the Board of Registration, that their resignations had been accepted by the appointing board, and that each had accepted and qualified for another public office. The Registration Board, for the purpose of preventing negroes from registering, became inoperative during long periods of time from 1946 to present. The latest paralysis of that office occurred in December 1958 and was caused by the purported resignation of its only two members.

An injunction was sought to prevent the above named appellees from engaging in the alleged acts, practices, methods or procedures in whatever form, which discriminate against any applicant for registration for voting in Macon County, Alabama, on account of his race or color.

Subsequently on February 23, 1959, appellant amended the original complaint to include as a party defendant the State of Alabama. This amendment averred that the State of Alabama, through its agents, officials and agencies, had engaged in the discriminatory and unlawful practices specified in the complaint. The amendment sought a declaratory judgment of the illegality of these acts and practices and a judgment "enjoining Defendant State of Alabama from engaging in such illegal acts and practices in the future and from interfering with the performance of such acts and practices as may be required by the Constitution and laws of the United States and the decree of this Court".

Appellees filed motions to dismiss.⁴ Essentially, appellee State of Alabama, objected to the action on the ground that the Civil Rights Act of 1957 does not authorize suits against states but only individual "persons" and that the State is not a "person" within the meaning of the Act; that states have exclusive jurisdiction in the field of voting by virtue of the Tenth and Eleventh Amendments to the United States Constitution; that in any event the District Court has no jurisdiction over actions involving a state; and that the Civil Rights Act of 1957 is unconstitutional. Appellees Rogers, Livingston, and the Registration Board objected to the complaint on the ground that the suit was improperly brought against Rogers and Livingston because they had effectively resigned their office as registrars; that the Civil Rights Act of 1957 does not authorize suits against the Registration Board but only against individual persons; that the State of Alabama is an indispensable party; that the action is precluded by the Eleventh Amendment to the Constitution; and that the registration board was not a suable entity under the laws of the State of Alabama.

The court below dismissed the complaint as to all defendants. With respect to appellees Rogers and Livingston, it held that they could not be made defendants because their resignations were effective in all respects, and that under the applicable Alabama law registrars have no obligation to continue to serve until successors were appointed to fill that office. The court dismissed as to the Registration Board on the grounds that it was not a suable legal entity under Alabama law and that in any event the Civil Rights Act of 1957 does not authorize suit against such a board, but permits a suit only against individual persons as members of the Board.

The court held that the action would not lie against the State of Alabama, on the ground that the Civil Rights Act of 1957 did not authorize a suit against a state. Having held, for the reasons stated as to each, that none of the defendants were subject to the suit, the court entered a judgment dismissing it as to each.

Appealing therefrom, plaintiff-appellant is here urging against the judgment three specifications of error:

1. The District Court erred in holding that 42 U.S.C. § 1971(c) does not permit the Attorney General to bring an action against the State of Alabama or the Board of Registrars of Macon County, Alabama.

2. The District Court erred in holding that an action under the Civil Rights Act of 1957 will not lie against registrars who have purported to resign their office, but for whom no successors have been appointed.

3. The District Court erred in holding that the Board of Registrars of Macon County, Alabama, is not a suable legal entity. and seeking its reversal.

Paramounting the first specification, that the court erred in holding that the statute upon which the suit was based does not permit the Attorney General to bring an action against the State of Alabama, appellant devotes the major portion of its brief to a discussion and argument which, not confining itself to an interpretation and construction of the statute, but, taking far wider range, undertakes to discuss not the actualities of the jurisdiction claimed to have been conferred by the statute but the possibilities in general of conferring upon the federal courts jurisdiction of an action against a state of the kind asserted here.

Interesting and engaging as these speculations are, we will not indulge in them here, but, confining ourselves to the sole question for determination, whether the statute supports the jurisdiction asserted, we will state simply but categorically that we agree with the district judge that neither on its face nor in its history, taken alone or in connection with civil rights legislation in general, is there any reasonable basis for holding that, in providing "whenever any person, * * *", the congress intended to, or did, provide for suit against a sovereign state.

Without elaborating upon it, as under the settled law of the cases we could do in extenso, it is sufficient for us to simply say that, under the principle which has been, and still is, controlling upon the federal courts, whatever congress might or could do in providing in a civil rights action for conferring federal court jurisdiction over a state, it has never heretofore done so and it has not in terms done so in the statute invoked here.

Absent such specific conferring of jurisdiction, a federal court would not, indeed could not assume jurisdiction over a sovereign state without a precedent determination that, though the jurisdiction had not been expressly conferred, the language of the invoked statute carried the necessary, the unavoidable implication that the congress upon the gravest considerations and after the utmost thought and deliberation had intended to and did confer it.

Reading the statute as one will, such an implication cannot be found in it. For it cannot be reasonably contended that the congress intended in a situation of this kind, where both the complaint and the Alabama statutes themselves, of which we take judicial...