The adequacy of these additional enforcement tools asked by the Justice Department to attack the problems involved is open to question, but the fact that they represent a step in the right direction seems patently obvious.

If far better enforcement of voting rights does not result from such action, then I would urge serious consideration of the McNamara bill S. 1084 to reduce the congressional representation of States denying or abridging the rights of its inhabitants to vote. This procedure is expressly authorized by section 2 of the 14th amendment.

While I am in sympathy with Mr. McNamara's point of view that several States are overrepresented in view of the unconstitutionally reduced size of their electorates, I would be loath to apply such drastic remedies until all others had been tried and failed.

Senator CARROLL. May I interrut at this time?
Senator CLARK. Yes, indeed.

Senator CARROLL. For example, on page 2 of your statement and I am now quoting from your statement:

In the year 1958, the white citizens of voting age of Macon County, Ala., numbered approximately 3,100 and the Negro citizens of voting age numbered approximately 14,000. On or about December 1, 1958, the white citizens registered to vote in Macon County numbered approximately 3,016, or approximately 97 percent of the white population of voting age, and the Negro citizens registered to vote in Macon County numbered approximately 1,110 or approximately 8 percent of the Negro population of voting age.

Senator CLARK. Those are pretty startling figures.

Senator CARROLL. It was in this situation as I recall, and I will try to clarify the record later, that the Civil Rights Commission got into a controversy with the registrars of Macon County.

The Macon County registrars I believe resigned. A local court intervened, and the sheriff seized the voting records.

Without going into it step by step, the Attorney General then, because of the authority that the Congress had granted in 1957 in the so-called right-to-vote civil rights legislation, instituted suit. The Attorney General was seeking to get hold of these records for the purpose of examination. Here we found a situation where upon the resignation of a local registering body, a local government official seizing the records. To overcome this resistance the Attorney General took the case to court.

As I understand the gist of the Federal court's decision, it was held that under the Alabama statute registrars could resign also, and most important, it was held that in view of the fact that the Congress had failed to sufficiently clarify the word "person", the word did not include a sovereign State, and therefore the Federal court threw out the suit of the Attorney General.

And at this time for the purpose of clarifying the incident in Macon County, and to show its chronological sequence, I am going to insert in the record, if the Senator from Pennsylvania has no objection, the full decision in the case of the United States of America, plaintiff, v. the State of Alabama, the Board of Registrars of Macon County, Alabama, Grady Rogers, and E. P. Livingston, registrars.

Does the Senator have any objection to having that inserted in the record at this point?

Senator CLARK. No, I would be happy indeed.

(The document referred to follows:)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

CIVIL ACTION No. 479-E

United States of America, Plaintiff, vs. State of Alabama; the Board of Registrars of Macon County, Alabama; Grady Rogers, E. P. Livingston, Registrars, Defendants

Filed March 6, 1959

MEMORANDUM OPINION

This is an action by the United States, as plaintiff, against Grady Rogers and E. P. Livington-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))' to obtain preventive relief against acts and practices by the named defendants which deprive other persons of rights and privileges secured by section 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, 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

1 Sec. 1971 (c). "Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction. restraining order, or other order. In any proceeding hereunder the United States shall be liable for costs the same as a private person.'

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, Livington, 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. On December 10, 1958, Livingston and Rogers each tendered to the appointing authority‘ 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. 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. 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.1

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, they are proper parties to this action.

"In Alabama, registration of voters in each county is conducted by "a board of three reputable and suitable persons * * *." Title 17, Section 21, 1940 Code of Alabama, as amended.

3 Approximately two months before this case was filed.

Appointing authority in Alabama is vested in the governor, auditor, and commissioner of agriculture and industries. or by a majority of them acting as a board of appointment. See Title 17, Section 21, 1940 Code of Alabama, as amended.

In Civil Action No. 1487-N, styled In re: George C. Wallace et al., this court on January 5, 1959, ordered these same two defendants to make said records available; said order was complied with, and both Livingston and Rogers were dismissed from said action. Rogers was in Mav 1958, nominated for and in November 1958, elected to the Alabama House of Representatives; he was sworn in and commenced serving as such official in January 1959. Livingston was appointed to be a jury commissioner for Macon County sometime after this suit was filed.

This Court does not understand that Livingston and Rogers are sued in any capacity other than as members of the Board of Registrars; their appearance in this cause as "Individuals" was unnecessary.

* No successors have yet been appointed.

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

"Section 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, 144 Ala. 629 (1905).o

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, Section 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 did in the general statute, supra.

In Badger, et al. v. U.S. Ex Rel. Bolles, (1876), 93 U.S. 599, 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 resignations may be made to and accepted by the officers named; but, to become perfect, they depend upon and must be followed by an additional fact; to-wit, the appointment of a successor, and his qualification."

The court went on to say:

"So, we think, where a person being in an office seeks to prevent the performance of its duties to a creditor of the town, by a hasty resignation, he must see that he resigns not only de facto, but de jure; that he resigns his office not only, but that a successor is appointed. An attempt to create a vacancy at a time when such action is fatal to the creditor will not be helped out by the aid of the courts."

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, et al., (Cir. Ct. W. D. Missouri, 1892), 53 F. 769. The applicable law there was part of the Constitution of Missouri, reading as follows:

"In the absence of any contrary provision, all officers hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be duly elected or appointed and qualified."

10

Also see Wilson v. United States, 135 F. 2d 1005; Vason v. City of Augusta, 38 Ga. 542, and People v. Turnbull, 184 Ill. App. 151.

10 It should also be noted that in the Green case the process sought to be enforced (mandamus) was made final before the officials attempted to resign. The court seemed to attached considerable significance to that fact, saying: "Their attempt to thus escape the judgment of this court was as abortive as it was ill advised."

A similar point was also raised in United States v. Justices of Lauderdale County, (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."

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 by 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 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 the intent of the Legislature of the State of Alabama, which intent is manifested by the wording of that statute.

To so hold would be to disregard completely § 160, Title 41 of the 1940 Code of Alabama, as amended," which statute specifically recognizes and provides that such offices can be vacated "By * * * resignation, except in such cases as are excepted by law." There are no exceptions in the case of registrars. In this connection, see Amy v. Watertown (1888), 130 U.S. 301, 316, in which case the Supreme Court recognized that the statute law of Wisconsin provided for the procedure to be followed in cases of resignation "was decisive" and "preclude the operation of any such rule as was recognized in Badger v. Bollas * * *.” 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 appointments 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 interregnum," 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 Liv

11 "Sec. 160. How offices are vacated.-Any office in this state is vacated: "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."