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)
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,
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.
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.
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,
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:
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.
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:
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
In Badger v. U. S. ex rel. Bolles, 1876, 93 U.S. 599, 23 L.Ed. 991, which case is heavily relied upon by the plaintiff, the Supreme Court had before it for interpretation a statute of the State of Illinois, the pertinent part of that statute being "they shall hold their offices until their successors shall be qualified." The question there before the court was whether or not certain officers, to-wit, a supervisor, town clerk, or justice of the peace, could resign their offices and thereby be relieved of their duties and responsibilities prior to the time their successor was appointed or chosen and was qualified. Mr. Justice Hunt, delivering the opinion of the Supreme Court of the United States in October, 1876, decided this question by stating:
The court went on to say:
Another case relied upon by the United States to sustain its position that Livingston and Rogers cannot resign until their successors have been appointed and qualified is the case of United States v. Green, 8 Cir., 1892, 53 F. 769. The applicable law there was part of the Constitution of Missouri, 1875, art. 14, § 5, V.A.M.S., reading as follows:
A similar point was also raised in United States ex rel. Watts v. Justices of Lauderdale County, 6 Cir., 1882, 10 F. 460; this case involved a Tennessee statute which stated that "every officer shall hold his office until his successor is elected or appointed, and qualified." Const. art. 7, § 5.
The rationale of the Badger, Green, and Lauderdale cases is that the acceptance by an individual of a public office and the awarding of this office upon an individual is "the imposition of a public trust be agreement between the state and the officeholder. Why may not the state attach as a condition to the bestowal of the honors and compensation growing out of the trust, that it shall not be surrendered until the state has designated a successor, so that the public interests shall not suffer?" That rationale appears to be good, consistent, and legally sound insofar as it relates to the Illinois, the Missouri, and the Tennessee statutes. However, it is not sound and it cannot be made applicable as to the Alabama statute. To hold that Registrars Livingston and Rogers entered into an agreement with the State of Alabama, when they accepted the appointment of registrars of Macon County, to the effect that they "shall" or "must" or "would" continue in said office until their successors had been appointed and qualified would be to disregard completely the wording of the Alabama statute.
To so hold would be to disregard completely § 160, Title 41 of the 1940 Code of Alabama, as amended,
Under the Alabama law, Registrars Livingston and Rogers (as well as any other registrars that accept an appointment while § 22 of Title 17 is in effect) accepted their apointments and agreed to serve "at the will of the appointing board" and with the understanding that they could be removed at any time by a majority of the appointing board (the governor, auditor and commissioner of agriculture and industries) "with or without cause, and without giving their reasons therefor." For this Court to follow the Badger, the Green, and the Lauderdale cases and to apply the rationale of those cases to this case would also mean that the registrar who accepted a position under a statute which said he "may hold office for four years" (subject to removal at the possible whim of the appointing board) could not for reasons of health or business, or other good and substantial reasons, in good faith terminate his office by resignation until the appointing authority decided to appoint his successor and until his successor got around to qualifying. This Court must and does now hold that the Legislature of the State of Alabama, in using the word "may" intended that the registrars not be required to hold office for four years from the time of their appointment, but that they "may" be removed with or without cause by the appointing board and that they "may" in good faith resign their office. Such an interpretation works no great hardship upon anyone. It does not permit any widespread conspiracy to defeat the law, it does not necessarily permit the paralyzation of governmental functions that are necessary to organized society, and it does not permit any "hiatus or interragnum," since the remedy of mandamus, if the circumstances warrant and justify its use, is always available to require the appointing board to fill, if they refuse to act within a reasonable time, any vacancies that may be created, such as these.
Nothing stated in this opinion should be construed to mean that this Court sanctions or will sanction the proposition (here unnecessarily advanced by Livingston and Rogers) that registrars are free to resign at will, indiscriminately and in bad faith, and thereby cast off all of their responsibilities and obligations as such officers.
The Defendant "The Board of Registrars of Macon County, Alabama":
The next category of points raised by the motion to dismiss relates only to the defendant "The Board of Registrars of Macon County, Alabama." It is contended that this Court has no jurisdiction over the Board of Registrars as such, because, first, said Board is not in
Registration in Alabama is provided for in § 186 of the Alabama Constitution of 1901 and Title 17, § 21 of the 1940 Code of Alabama, as amended.
In Handy Cafe, Inc. v. Justices of the Superior Court, 1 Cir., 1957, 248 F.2d 485, 487, certiorari denied March 10, 1958, 356 U.S. 902, 78 S.Ct. 561, 2 L.Ed. 2d 580, the plaintiff sued, under § 1983, Title 42 U.S.C.A.
With reference to whether or not "the members of the Superior Court and Supreme Judicial Court" constituted a suable legal entity, the first Circuit Court of Appeals in a per curiam opinion
Also in point here is the case of Hewitt v. City of Jacksonville, 5 Cir., 1951, 188 F.2d 423, 424, where the court, speaking through Judge Holmes, said:
See also the Fifth Circuit case of Charlton v. City of Hialeah, (1951), 188 F.2d 421, which followed the Hewitt v. Jacksonville decision.
The Defendant State of Alabama:
The motion to dismiss filed by the State of Alabama contains some fifty-eight grounds. These grounds fall into five general categories. They are:
(1) Civil Rights Act of 1957 authorizes actions only against "individual persons" and not states.
(2) States have exclusive jurisdiction in the field of voting by reason of the Tenth and Eleventh Amendments to the Constitution of the United States.
(3) Supreme Court of the United States has original and exclusive jurisdiction in cases involving sovereign states.
(4) Civil Rights Act of 1957 (particularly Part IV) is unconstitutional.
(5) Even if this Court determines that it has jurisdiction and determines that the Act is constitutional, it should refrain from exercising jurisdiction in this case because of comity.
Category two is obviously without merit. Part of what this Court said in the case of In re Wallace, 170 F.Supp. 63, is applicable in this case and is dispositive of these points:
As to defendant's contention that the Supreme Court has original jurisdiction, there is no question. See Article III, § 2 of the Constitution of the United States. Also United States v. State of West Virginia, 295 U.S. 463, 470, 55 S.Ct. 789, 79 L.Ed. 1546, and United States v. State of California, 297 U.S. 175, 187, 56 S.Ct. 421, 80 L.Ed. 567. However, it is not true that this jurisdiction is exclusive. In the California case, supra, the Supreme Court held that venue properly lay in the district court in California in an appropriate case. See also State of New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326, and State of Colorado v. United States, 10 Cir., 219 F.2d 474. Here, there is in 42 U.S.C.A. § 1971(c) and (d), specific and unambiguous Congressional authorization for actions such as this one to be commenced in this Court.
Because of the conclusions hereinafter reached by this Court in connection with the State's motion and in keeping with the duty of any court to avoid constitutional questions unless essential to a proper disposition of a case,
The category of objections remaining concern the question of whether or not the Civil Rights Act of 1957 authorizes actions for preventive relief by the Attorney General against states. Without any doubt, the Congress of the United States had the authority to grant such a right.
There is no doubt that such authority would be appropriate — and even in certain circumstances necessary — if Congress intended to give full and complete authority to the Attorney General of the United States to enforce the constitutional rights here involved. This Court judicially knows that the Civil Rights Act of 1957 was a compromise measure and the compromise reflected an intention on the part of Congress to give limited authority — as opposed to full and complete authority — in this field. A reading of the legislative history of this Act impresses this Court with the fact that if it had then been mentioned that this Act authorized the United States to sue a state for preventive relief, the Act would not yet be passed.
The Court must presume, therefore, that Congress in using only the word "person" deliberately restricted the authority of the Attorney General to institute such actions. Such reasoning as now used and the conclusion as is now reached is analogous to the reasoning and conclusion of the Supreme Court of the United States in United States v. United Mine Workers of America, 1947, 330 U.S. 258, 275, 67 S.Ct. 677, 687, 91 L.Ed. 884. In that case, the court held, among other things, that the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq. did not apply to the "Government in all cases" and observed:
In accordance with the foregoing, an appropriate order will be entered dismissing this action as to each of the defendants.
Since the action is to be dismissed as to all defendants, the motion to produce, as to each of them and their objections thereto, and the motion to strike and quash service are moot.
"By the death of the incumbent.
"By his resignation, except in such cases as are excepted by law.
"By ceasing to be a resident of the state, or of the division, district, circuit, or county, for which he was elected or appointed.
"By the decision of a competent tribunal declaring his election or appointment void, or his office vacant.
"By the act of the legislature abridging his term of office, when the same is not fixed by the constitution.
"In such other cases as are or may be declared by law."