United States v. State of Alabama

• Decision Date: 06 March 1959
• Docket Number: No. 479-E.,479-E.
• Parties: UNITED STATES of America, Plaintiff, v. STATE OF ALABAMA; The Board of Registrars of Macon County, Alabama; Grady Rogers, E. P. Livingston, Registrars, Defendants.
• Court: U.S. District Court — Middle District of Alabama

171 F. Supp. 720

UNITED STATES of America, Plaintiff, v. STATE OF ALABAMA; The Board of Registrars of Macon County, Alabama; Grady Rogers, E. P. Livingston, Registrars, Defendants.

No. 479-E.

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

March 6, 1959.

COPYRIGHT MATERIAL OMITTED

W. Wilson White, Asst. Atty. Gen., Joseph M. F. Ryan, Jr., Attorney, Department of Justice, Washington, D. C., and Hartwell Davis, U. S. Atty., Montgomery, Ala., for the United States.

MacDonald Gallion, Atty. Gen., and N. S. Hare, Special Asst. Atty. Gen., State of Alabama, for all defendants.

Lawrence K. Andrews, Union Springs, Ala., for defendants Grady Rogers and E. P. Livingston.

JOHNSON, District Judge.

This is an action by the United States, as plaintiff, against Grady Rogers and E. P. Livingston — each as a member of the Board of Registrars of Macon County, Alabama — The Board of Registrars of Macon County, Alabama, and the State of Alabama, as defendants.

The action is brought under Part IV of the Civil Rights Act of 1957 (P.L. 85-315, 42 U.S.C.A. § 1971(c)¹ to obtain preventive relief against acts and practices by the named defendants which deprive other persons of rights and privileges secured by § 1971(a) of Title 42 U.S.C.A., namely, the right and privilege of citizens of the United States, who are otherwise qualified by law to vote at any election by the people in the State of Alabama, to be entitled and allowed to vote at all such elections without distinction of race or color.

The plaintiff says that each of the named defendants, being under a constitutional obligation to fulfill certain duties and obligations relative to registering qualified applicants of Macon County, Alabama, to vote without regard to considerations of race or color, has, for many years, persisted in acts and practices in violation of this constitutional obligation, which acts and practices have resulted in depriving qualified citizens of their right to vote solely because of their race and color.

Originally the action did not include the State of Alabama as a defendant. However, the action was, pursuant to the provisions of Rule 15 of the Federal Rules of Civil Procedure, 28 U.S.C.A., amended on February 23, 1959, to add as an additional party defendant the State of Alabama.

Plaintiff details the "acts and practices" the defendants are alleged to engage in in violation of their constitutional obligations and seeks to have this Court adjudge those acts and practices to be in violation of the Constitution and laws of the United States and to declare that said defendants are under a legal duty not to engage in, or permit its agents, officials and agencies to engage in such practices. Plaintiff also seeks to have this Court permanently enjoin the named defendants, or any of the defendants' agents, officials, and/or agencies from engaging in said acts and practices.

On February 12, 1959, the plaintiff, by appropriate motion and supporting documents, moved this Court for an order directing the defendants to produce and permit the inspection, copying, and photographing of certain records, documents, and papers. This Court, upon proper application, issued on February 12, 1959, a temporary restraining order pending disposition of said motion to produce, restraining the defendants and/or their agents from destroying or otherwise rendering unavailable certain voting and registration records and other enumerated documents made and received by the Macon County, Alabama, Board of Registrars since January 1, 1954. The motion to produce, the order that was entered upon the motion to produce, and the temporary restraining order were amended on February 23, 1959, to include defendant State of Alabama.

The defendants Rogers, Livingston, and The Board of Registrars of Macon County, Alabama, separately and severally (1) move to dismiss the action as to each of them (amended February 23, 1959); (2) move to "strike and quash" the service upon each of them of the various papers in this cause; (3) object to plaintiff's motion to produce; and (4) move to dissolve as to each of them the temporary restraining order issued by this Court on February 12, 1959. The defendant State of Alabama also moves to dismiss the action as to it.

All of said defendants' motions and objections are now submitted to the Court upon the pleadings, certain affidavits and documents attached thereto, evidence by deposition, written briefs of all parties, and oral arguments of counsel.

Considering first the defendants Rogers, Livingston, and The Board of Registrars' amended motion to dismiss, with the supporting affidavits of the defendants Rogers and Livingston, it appears that said motion cites some sixteen grounds in support thereof. The grounds fall into four general categories. They are: (1) The State of Alabama is an indispensable party; (2) the action is precluded by the Eleventh Amendment to the Constitution of the United States; (3) no relief can be had against defendants Rogers and Livingston because they had resigned; and (4) the Civil Rights Act of 1957 authorizes suits only against individual persons.

Because of the conclusions hereinafter reached by this Court, it will not be necessary in connection with the motions of Rogers, Livingston, and The Board of Registrars, to discuss or decide the questions involved in the first two categories.

Proceeding then to the third category of points (i. e., no preventive relief should be granted against Livingston and Rogers because they had resigned as registrars), the evidence presented — in the form of uncontroverted affidavits — shows that the members of the Board of Registrars of Macon County, Alabama, prior to December 10, 1958, were Grady Rogers and E. P. Livingston, the third member having died.² On December 10, 1958,³ Livingston and Rogers each tendered to the appointing authority⁴ a written resignation as a member of the Board of Registrars of Macon County, Alabama. Said resignations were submitted during a controversy between the Commission on Civil Rights and certain Alabama officials, including Livingston and Rogers, over the right of said Commission to inspect and copy some of the same records the plaintiff in this case now seeks.⁵ Both Rogers and Livingston now say that said resignations were absolute and unconditional; that they were made in good faith, and that neither intends to serve again as a member of the Board of Registrars; that said resignations have been accepted by the appointing board, and that each of them has qualified and begun serving in two other public offices.⁶ Both Livingston and Rogers testify that all of the records now sought by plaintiff were turned over to the sheriff of Macon County, Alabama, by them on December 8, 1958; that such action by them was in response to a subpoena duces tecum issued at the instance of Tom F. Young, Circuit Solicitor of the Fifth Judicial Circuit of Alabama. Solicitor Young testifies by deposition in this cause and the effect of his testimony is to substantiate that part of Livingston's and Rogers' testimony. Solicitor Young unequivocally states that he now has the custody of said records and that said records are in a locked room in the courthouse of Macon County, Alabama.

The Defendants Livingston and Rogers:

The matter is therefore focused as to Livingston and Rogers. If, as they contend, their resignations were effective in all respects, they cannot now be sued in their capacity as registrars of Macon County, Alabama.⁷

If, however, as the plaintiff contends, they have the continuing obligations of their office as registrars of Macon County, Alabama, until their successors are appointed,⁸ they are proper parties to this action.

The statute prescribing the terms of office for the registrars in Alabama, designated as § 22 of Title 17, 1940 Code of Alabama, as amended, is as follows:

"§ 22. Terms of office. — The registrars so appointed under this article may be removed at the will of the appointing board, or a majority of the members thereof, at any time, with or without cause, and without giving their reasons therefor; and if not so removed, the registrars may hold office for four years from the time of their appointment and until their successors are appointed."

The plaintiff reasons that the word "may" as used in this statute is to be construed to mean "shall" wherever the rights of the public or third persons depend upon the exercise of the power or performance of the duty to which it refers. Such a theory is not without supporting authority — even in Alabama. See Montgomery v. Henry, 1905, 144 Ala. 629, 39 So. 507, 1 L.R.A.,N.S., 656.⁹

However, the real question here is: What did the Legislature of Alabama intend? There are no cases directly in point. In making an effort to resolve this question it is significant to note that Alabama has a general statute relating to terms of office. This general statute, designated as Title 41, § 176, 1940 Code of Alabama, as amended, reads as follows:

"Vacancies in state and county offices; how filled; term of office. — Vacancies in all state and county offices are filled by appointment of the governor, except as otherwise provided; the appointees must be commissioned, and they shall hold their offices for the unexpired term, and until their successors are elected and qualified."

It can very readily be seen that § 176 of Title 41 is not applicable to the registrars because of that portion of § 176 that says "except as otherwise provided"; this is true since it is "otherwise provided" in § 22 of Title 17, supra. Thus, insofar as the term of office for registrars is concerned, § 22 of Title 17 is generally controlling.

This Court is of the opinion that had the Legislature of the State of Alabama intended for the registrars to remain obligated to serve until their successors were appointed and qualified they would not have used the permissive term "may" but would have used the imperative term "shall" as they...