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within the Church and without, in this country and internationally",1 while its National Council has passed a separate resolution regarding the Supreme Court's decision as "just, right, and necessary". No diocesan council or convention of the Church is segregated according to race. More and more Church organizations are disregarding colour lines.

Unquestionably these independent actions of Church and State have combined to make possible some of the encouraging progress now being seen in the attainment of broader civil rights for minority groups. The Negro is entering upon a new era of educational and political freedom in the United States. Better housing and greater economic opportunities are becoming available to the people of many races and tongues. Many social barriers are coming down.

However, the degree of this attainment has not been the same everywhere. There are still unresolved conflicts resulting from the influx of immigrants into seaport cities; the special problems connected with Puerto Ricans, Poles, Jews, and Irish still demand attention; the South-West is at grips with its LatinAmerican difficulties; the West Coast is concerned with its proper relation to Orientals; the position of the American Indian has not yet been clarified. Beyond all these conflicts of varying intensity, the Negro is now moving North in great numbers, and already this area is being increasingly faced with the necessity of solving this fresh integration problem.

Meanwhile the eyes of the nation and of the world are fixed upon the problem as it presents itself in the South, where Christians are finding themselves on opposite sides. The Negro with natural impatience is exercising a persistence which many whites find irritating. Mutual fear and suspicion and prejudice are, as so often, delaying the process of reconciliation. The controversy has engendered deep differences not only between the white man and the Negro but between members of the same family and race. The situation, with its accompanying political implications, has also prompted the passage of many segregation Bills by Southern State legislatures in an attempt to circumvent the Supreme Court's ruling. This has created a further division of loyalties. These are some of the elements of a complicated and confusing situation in which the Church is speaking and living. Its clergy and, in increasing numbers, its laity are working, not only to ensure to members of all races a free participation in divine worship, but also to ensure that educational and health services as well as equal economic opportunities are available to all. This the Church is consistently trying to accomplish without submitting to any tempting policy of expediency. It is striving to go forward in the knowledge that to stand still is a denial of its belief in God's guidance and its own responsibility to its brothers in Christ.

There is no easy solution to the differences which exist in regard to race relations in the United States in general. The complexities compel a sympathy for all who are involved. But this Committee believes that men of good will in all races can point the way to greater peace and harmony through the exercise of mutual understanding, calm reason, and constant prayer.

STATE OF ALABAMA,
GOVERNOR'S OFFICE,
Montgomery, May 5, 1959.

Hon. CHARLES SLAYMAN,

Counsel, Subcommittee on Constitutional Rights,
Committee on the Judiciary,
U.S. Senate, Washington, D.C.

DEAR MR. SLAYMAN: I wish to apologize for my delay in furnishing you and the subcommittee the information that you requested recently when I appeared before your subcommittee in opposition to some so-called civil rights bills. I have had difficulty in locating extra copies of briefs filed by the parties in the cases involving the boards of registrars and other public officials in Federal court in Montgomery.

Enclosed herewith is a copy of the brief filed by the respondents and the Alabama Bar Association in the case in re George C. Wallace, et al. I believe that this brief amply sets out the facts of the case as well as the legal principles involved.

1 General Convention. Boston, 1952.

2 Cf. National Council Pamphlet entitled "Just, Right, and Necessary."

CIVIL RIGHTS-1959

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prior order until January 9, 1959, and set down respondents' motions for hearing
on January 5, 1959. The court further ordered that written briefs be filed with
the court not later than 10:00 a.m., December 31, 1958.

STATEMENT OF FACTS

Also enclosed is a copy of the brief filed by the United States in said case. I call your attention to page 8 of said brief where the United States takes the position that the powers of the Civil Rights Commission are the same as the powers of a common law grand jury.

I am also herewith returning the transcript of my testimony before your committee which I have corrected.

You also requested that I furnish you certain legal citations substantiating the
rule that class actions cannot be brought to vindicate voting rights, but each
case must stand on its individual facts and must be brought separately. These
citations are as follows:

Mitchell v. Wright (October 1945), 62 F. Supp. 580–154 F. 2d 924, 67 Su-
preme Court 96, 329 U.S. 733 91 L. Ed. 622.
Williams v. Kansas City, Mo. et al. 104 F. Supp. 848 (see p. 857) June 10

,
1953 205 F. 2d page 47 (Kansas City, et al. v. Williams et al.) U.S. Court of
Appeals 8 Cir.

Jinks v. Hodge 11 FRD 346.

Siegel v. Regain 88 F. Supp. 996.
Again, I wish to say that it was a pleasure appearing before you and the sub-
committee and I appreciate the opportunity and the courtesy extended to me.
Very truly yours,

John PATTERSON, Governor.

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

Civil Action No. 1487-N
In Re: GEORGE C. WALLACE, W. A. STOKES, SR., GRADY ROGERS, E. P. LIVINGSTON,

M. T. EVANS AND J. W. SPENCER
On Motions of Respondents To Set Aside Order To Appear Before the Com-

mission on Civil Rights
BRIEF FOR RESPONDENTS, AND ON BEHALF OF THE ALABAMA

STATE BAR, AS AMICUS CURIAE

The Commission on Civil Rights is a temporary agency of the United States government, created by the Civil Rights Act of 1957. It is composed of six members appointed by the President by and with the advice and consent of the Senate and, in addition, has a full-time director and staff. Under Section 104 (a) of the Act, the Commission is empowered (i) to investigate sworn allegations in writing that citizens are being deprived of their right to yote; (ii) to study and collect information concerning legal developments constituting a denial of equal protection of the laws; and (iii) to appraise federal laws and policies with respect to equal protection of the laws. The Commission is charged also with submitting interim reports and a final report to the President and to Congress. The final report of the Commission is to be submitted not later than September 7, 1959. Sixty days thereafter the Commission shall cease to exist. The Commission set a public hearing to be held in the City of Montgomery, Montgomery County, Alabama, on December 8, 1958. Prior to this hearing, by subpoenas dated November 29, 1958, and served on December 2 and 3, the Commission ordered respondents, as officials of the State of Alabama, to appear on December 8 and to produce at such time and place certain voting registration records of the State. The agent of the Commission who served the subpoena on

respondent Wallace at the courthouse in Clayton, Barbour County, Alabama, was | accompanied by a paid publicity agent of the Commission, and by a newspaperman alerted by the Commission.

Respondent George C. Wallace is a judicial officer of the State of Alabama, being the sole judge for the Third Judicial Circuit of Alabama, which includes the counties of Barbour, Bullock, and Dale. His court is one of general jurisdiction and is the only such court for the counties named." Respondents Stokes and Spencer are members of the Board of Registrars of Barbour County, Alabama. Respondent Evans is a member of the Board of Registrars of Bullock County, Alabama. Prior to December 10, 1958, on which date they resigned, respondents Rogers and Livingston were members of the Board of Registrars of Macon County, Alabama. Under the law of Alabama, registrars are responsible for the administration of the registration of voters in the counties with respect to which they are appointed,' and under the Constitution of Alabama they are judicial officers of the state. The records which they keep with respect to registration and which were ordered produced are official records of the State of Alabama, and with respect thereto, the law of Alabama provides that "no records or papers of any court must be removed out of the

county, except in cases of invasion or insurrection, whereby the same may be i endangered, or unless by order of the court."

On October 29, 1958, one month prior to the issuance of the subpoenas of the Commission, respondent Wallace, acting as judge of the Third Judicial Circuit of Alabama, and pursuant to a petition filed by a resident of Barbour County, ordered all registration records of that county impounded and delivered to his court to be held pending a grand jury investigation of improper registration. On November 21, 1958, in a similar proceeding, Judge Wallace impounded the registration records of Bullock County. Thus, when the subpoenas were served upon them, respondents Stokes, Spencer, and Evans were not in possession of, and did not have access to, the records which were ordered produced.

The subpoena issued by the Commission to Judge Wallace ordered him to appear in Montgomery, Alabama, outside his judicial circuit, and to bring with him

E. L. RINEHABT,
RALPH SMITH,

State Office Building, Montgomery,
Alabama,

Of Counsel

JOHN PATTERSON,

Attorney General of Alabama, For

AU Respondents

CHAUNCEY SPARKS,

For Respondent George C. Wallace,

as Judge of the Third Judicial
Circuit of Alabama

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On Behalf of the Alabama State

Bar, as Amicus Curiae

J. Asa ROUNTREE III,

Jos. F. JOHNSTON,
DRAYTON T. SCOTT,

First National Building, Birming-
ham 3, Alabama,
Of Counsel

STATEMENT OF THE CASE
By summary order dated December 11, 1958, this court commanded George
and J. W. Spencer, hereinafter referred to as “respondents", to appear before
C. Wallace, W. A. Stokes, Sr., Grady Rogers, E. P. Livingston, M. T. Evans
certain records of the State of Alabama; and to give testimony before the Com-
the Commission on Civil Rights on December 19, 1958; to produce at that time
mission. The order was issued in response to an application filed December 10,
1958, by the Attorney General of the United States, and none of the respondents
issuance of the order. On December 16, 1958, the respondents filed with the
had notice of the filing of the application or any opportunity to be heard before
of the Attorney General; to quash the administrative subpoenas which had
court motions requesting the court to vacate its order; to deny the application
the order of the court pending hearing of the respondents' objections thereto.
theretofore been issued by the Commission; and, in the alternative, to suspend
By order dated December 17, 1958, this court suspended the operation of the

1 Public Law 85–315, 85th Cong., Sept. 9, 1957; 71 Stat. 634 : 42 U.S.C.A. Sec. 1975. * This so-called "hearing"

was preceded by much publicity, on the part of the Commission, and the proceeding was deprived of all dignity, and of any bona fide function as an investigation of facts, by the presence of television and newsreel cameras, the facilities for which, together with those for newsmen, occupied approximately one-half of the space available in the federal courtroom in which the hearing was conducted. A large part of the remaining space was permitted by the Commission to be occupied by spectators not directly interested In the matters purportedly under investigation, with the result that there was not sufficient seating room for witnesses and their counsel.

* See generally, Ala. Const. 1901, Article 6, $$ 139, 142-148; Ala. Code 1940, Tit. 13, Chapter 4. Ala. Code 1940, Tit. 17, 88 21-56.

Ala. Const. 1901, Amend. 91 (1951). • Ala. Code 1940, Tit. 7, $3.

40361-59—pt. 443

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prior order until January 9, 1959, and set down respondents' motions for hearing on January 5, 1959. The court further ordered that written briefs be filed with the court not later than 10:00 a.m., December 31, 1958.

STATEMENT OF FACTS

The Commission on Civil Rights is a temporary agency of the United States government, created by the Civil Rights Act of 1957. It is composed of six members appointed by the President by and with the advice and consent of the Senate and, in addition, has a full-time director and staff. Under Section 104 (a) of the Act, the Commission is empowered (i) to investigate sworn allegations in writing that citizens are being deprived of their right to vote; (ii) to study and collect information concerning legal developments constituting a denial of equal protection of the laws; and (iii) to appraise federal laws and policies with respect to equal protection of the laws. The Commission is charged also with submitting interim reports and a final report to the President and to Congress. The final report of the Commission is to be submitted not later than September 7, 1959. Sixty days thereafter the Commission shall cease to exist. The Commission set a public hearing to be held in the City of Montgomery, Montgomery County, Alabama, on December 8, 1958. Prior to this hearing, by subpoenas dated November 29, 1958, and served on December 2 and 3, the Commission ordered respondents, as officials of the State of Alabama, to appear on December 8 and to produce at such time and place certain voting registration records of the State. The agent of the Commission who served the subpoena on respondent Wallace at the courthouse in Clayton, Barbour County, Alabama, was accompanied by a paid publicity agent of the Commission, and by a newspaperman alerted by the Commission.

Respondent George C. Wallace is a judicial officer of the State of Alabama, being the sole judge for the Third Judicial Circuit of Alabama, which includes the counties of Barbour, Bullock, and Dale. His court is one of general jurisdiction and is the only such court for the counties named.3

Respondents Stokes and Spencer are members of the Board of Registrars of Barbour County, Alabama. Respondent Evans is a member of the Board of Registrars of Bullock County, Alabama. Prior to December 10, 1958, on which date they resigned, respondents Rogers and Livingston were members of the Board of Registrars of Macon County, Alabama. Under the law of Alabama, registrars are responsible for the administration of the registration of voters in the counties with respect to which they are appointed, and under the Constitution of Alabama they are judicial officers of the state." The records which they keep with respect to registration and which were ordered produced are official records of the State of Alabama, and with respect thereto, the law of Alabama provides that "no records or papers of any court must be removed out of the county, except in cases of invasion or insurrection, whereby the same may be endangered, or unless by order of the court."

On October 29, 1958, one month prior to the issuance of the subpoenas of the Commission, respondent Wallace, acting as judge of the Third Judicial Circuit of Alabama, and pursuant to a petition filed by a resident of Barbour County, ordered all registration records of that county impounded and delivered to his court to be held pending a grand jury investigation of improper registration. On November 21, 1958, in a similar proceeding, Judge Wallace impounded the registration records of Bullock County. Thus, when the subpoenas were served upon them, respondents Stokes, Spencer, and Evans were not in possession of, and did not have access to, the records which were ordered produced.

The subpoena issued by the Commission to Judge Wallace ordered him to appear in Montgomery, Alabama, outside his judicial circuit, and to bring with him

1 Public Law 85-315, 85th Cong., Sept. 9, 1957; 71 Stat. 634; 42 U.S.C.A. Sec. 1975. 2 This so-called "hearing" was preceded by much publicity, on the part of the Commission, and the proceeding was deprived of all dignity, and of any bona fide function as an investigation of facts, by the presence of television and newsreel cameras, the facilities for which, together with those for newsmen, occupied approximately one-half of the space available in the federal courtroom in which the hearing was conducted. A large part of the remaining space was permitted by the Commission to be occupied by spectators not directly interested in the matters purportedly under investigation, with the result that there was not sufficient seating room for witnesses and their counsel.

See generally, Ala. Const. 1901, Article 6, §§ 139, 142-148; Ala. Code 1940, Tit. 13, Chapter 4.

Ala. Code 1940. Tit. 17, §§ 21-56.

Ala. Const. 1901, Amend. 91 (1951).

Ala. Code 1940, Tit. 7, § 3.

40361-59-pt. 4- -43

CIVIL RIGHTS-1959

CIVIL RIGHTS-1959

2789

this reason it will be understood that this is a memorandum brief which does not purport to give exhaustive treatment to the issues involved.

Briefly stated, the issues here involve (1) the question whether the Civil Rights Act can properly be construed to authorize the sweeping subpoenas issued by the Commission and sought to be enforced in this proceeding; (2) the validity of the Act and the jurisdiction of the court, if the Act can be given such an unlimited construction; and, if it is held that this court has jurisdiction, (3) the propriety and extent of the exercise of such jurisdiction.

I WITH RESPECT TO THE RECORDS ORDERED PRODUCED, THIS ACTION IS AGAINST THE

STATE OF ALABAMA

the records impounded by the orders of October 29, and November 21, and there “not to depart without leave of said Commission.” This summary command was issued without regard for his obligations and responsibilities as a circuit judge of Alabama,' and despite the fact that prior to the issuance of the subpoena he had cases set for hearing during the week in which he was ordered to appear. The subpoenas issued to the other respondents required them also to appear in their official capacities, but outside their counties, and to bring with them from the places in which they are customarily kept and the counties to which they relate registration records of the State of Alabama.

The subpoenas issued by the Commission, compliance with which was directed by the order of December 11, commanded the production at Montgomery of all the records of the three counties pertaining to every application for registration of voters for a period of three years, without regard to the existence of any specific complaint or asserted denial of right with respect thereto.

Respondent Stokes, Rogers, Livingston, Evans and Spencer appeared at the hearing on December 8, 1958, but did not produce the records, and declined to testify. Judge Wallace neither appeared nor produced the records which were in the custody of his court. Thereupon, the United States Attorney General filed his application to this court for enforcement of the subpoenas. Upon the filing of that application, this court issued its order dated December 11, 1958, which order, as amended by order dated December 17, 1958, similarly commands Judge Wallace to appear outside his judicial circuit and there to wait upon the convenience of the Commission or a subcommittee thereof for an indefinite period of time and there, in violation of the law of the state, to produce records of the state which are held in the custody of his court. The order of the court likewise commands the other respondents to appear and to produce records which are court records under the State Constitution and laws.

Applications for registration in Alabama have always been treated as confidential, subject to inspection only upon specific order of court in a proper

QUESTIONS PRESENTED 1. Can the Civil Rights Act be construed to empower the Commission or the officers of the state in their official capacity, and the production of state records Court to compel the attendance away from their official residences of judicial beyond their statutory place of custody in violation of state law?

2. Should the State of Alabama be named as a party of record? 3. Can the Civil Rights Act be construed to authorize the Attorney General to bring an action against the state?

4. Can the power of the Commission to subpoena “witnesses” be construed to include the power to subpoena persons who are themselves the subjects of investigation?

5. Is the Civil Rights Act valid to the extent that it may be construed to empower the Commission to compel the testimony of state judicial officers and the removal and delivery of state records away from their statutory place of custody?

6. Are records of a state privileged against process issued by a federal court? will be subjected to television and new freel cameras, news photographers, large

in Can a witness be compelled to appear to testify at a hearing at which he crowds, and the like?

8. Even if this court has jurisdiction of this action, should it exercise its jurisdiction, and if so, to what extent?

case.

It is clear that when a petition for the enforcement of an administrative proceeding is filed with a Federal court, it initiates a civil action. See Interstate Commerce Comm. v. Brimson, 154 U.S. 447, 489, 38 L. Ed, 1047, 1061 (1894): Fed. R. Civ. P. 81(a)(3). It is also clear that the enforcement proceeding which is at bar is, through the agency of the United States Attorney General, an action by the United States and, certainly to the extent that state records are sought, is action against the State of Alabama.

Although the State of Alabama is not named as a party here, it is the real party in interest with respect to its records and the official and judicial conduct of its officers. In such a case, where a state official is named as the party

defendant, the court will consider whether the relief is not, in substance, sought | against the state. See Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299,

304, 96 L. Ed. 335, 340 (1952). See, also, Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 89 L. Ed. 389, 394 (1945), in which the court said:

“We have previously held that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. * And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants."

Here, instead of money, the United States is attempting to seize official records of the state and, in effect, to restrain a state judge from the performance of his duties and to disrupt the operations of a state court of general jurisdiction.

The rule of Ex Parte Young' does not apply here. This proceeding “is not a proceeding within the principle that suit may be brought against state officers to restrain an attempt to enforce an unconstitutional enactment. That principle is that the exemption of States from suit does not protect their officers from personal liability to those whose rights they have wrongfully invaded." Missouri v. Fiske, 290, U.S. 18, 26, 78 L. Ed. 145, 150 (1933). Nor is this a suit to restrain or punish state officials for acts which are unconstitutional and

which are not therefore, even if under color of office, within their official ca| pacity. Here, with respect to their custodianship of registration records, all

respondents are acting as officers of the state. In no other capacity could they be ordered to produce the records. This is made clear from the Commission's subpoenas, which show on their face that respondents were summoned in their official rather than in their individual capacities.

As stated in Ex Parte Avers, 123 U.S. 443, 489, 31 L. Ed. 216, 224 (1887): “The inference is that where it is manifest, upon the face of the record, that the defendants have no individual interest in the controversy, and that the relief sought against them is only in their official capacity as representatives of the State, which alone is to be affected by the judgment or decree, the question then arising, whether the suit is not substantially a suit against the State, is one of jurisdiction."

ARGUMENT

INTRODUCTION The court is aware of the wide scope of the constitutional questions which are presented by the case at bar and the great difficulties which are inherent for the filing of briefs it could not be expected that full coverage could be given therein, and we are sure that the court will agree that within the time alloted to these questions, which go to the very foundations of the federal system. For

Er Parte Avers is an Eleventh Amendment case, but such cases are relevant to show (i) what constitutes a suit against a state and (ii) the strong constitutional policy of immunizing states against suits even when such suits are brought by the United States.

The State of Alabama is obviously the real respondent in interest here, for the named respondents, either in their individual or official capacities, have no authority to surrender to the Commission any official records in their custody. Thus, the state is an indispensable party to this proceeding, and process must issue to it if the application of the Attorney General is to be granted.

7

7 Section 114 of Title 13 of the Alabama Code provides : state shall be open for the transaction of any and all business, or judicial proceedings of

"S 114. When circuit courts open.-The circuit courts of the several counties of the every kind, at all times."

* 209 U.S. 123, 52 L. Ed. 714 (1908).

this reason it will be understood that this is a memorandum brief which does not purport to give exhaustive treatment to the issues involved.

Briefly stated, the issues here involve (1) the question whether the Civil Rights Act can properly be construed to authorize the sweeping subpoenas issued by the Commission and sought to be enforced in this proceeding; (2) the validity of the Act and the jurisdiction of the court, if the Act can be given such an unlimited construction; and, if it is held that this court has jurisdiction, (3) the propriety and extent of the exercise of such jurisdiction.

I. WITH RESPECT TO THE RECORDS ORDERED PRODUCED, THIS ACTION IS AGAINST THE STATE OF ALABAMA

It is clear that when a petition for the enforcement of an administrative proceeding is filed with a Federal court, it initiates a civil action. See Interstate Commerce Comm. v. Brimson, 154 U.S. 447, 489, 38 L. Ed. 1047, 1061 (1894); Fed. R. Civ. P. 81 (a) (3). It is also clear that the enforcement proceeding which is at bar is, through the agency of the United States Attorney General, an action by the United States and, certainly to the extent that state records are sought, is action against the State of Alabama.

Although the State of Alabama is not named as a party here, it is the real party in interest with respect to its records and the official and judicial conduct of its officers. In such a case, where a state official is named as the party defendant, the court will consider whether the relief is not, in substance, sought against the state. See Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299, 304, 96 L. Ed. 335, 340 (1952). See, also, Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 89 L. Ed. 389, 394 (1945), in which the court said:

"We have previously held that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. * * * And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants."

Here, instead of money, the United States is attempting to seize official records of the state and, in effect, to restrain a state judge from the performance of his duties and to disrupt the operations of a state court of general jurisdiction.

The rule of Ex Parte Young does not apply here. This proceeding "is not a proceeding within the principle that suit may be brought against state officers to restrain an attempt to enforce an unconstitutional enactment. That principle is that the exemption of States from suit does not protect their officers from personal liability to those whose rights they have wrongfully invaded." Missouri v. Fiske, 290, U.S. 18, 26, 78 L. Ed. 145, 150 (1933). Nor is this a suit to restrain or punish state officials for acts which are unconstitutional and which are not therefore, even if under color of office, within their official capacity. Here, with respect to their custodianship of registration records, all respondents are acting as officers of the state. In no other capacity could they be ordered to produce the records. This is made clear from the Commission's subpoenas, which show on their face that respondents were summoned in their official rather than in their individual capacities.

As stated in Ex Parte Avers, 123 U.S. 443, 489, 31 L. Ed. 216, 224 (1887): "The inference is that where it is manifest, upon the face of the record, that the defendants have no individual interest in the controversy, and that the relief sought against them is only in their official capacity as representatives of the State, which alone is to be affected by the judgment or decree, the question then arising, whether the suit is not substantially a suit against the State, is one of jurisdiction."

Ex Parte Avers is an Eleventh Amendment case, but such cases are relevant to show (i) what constitutes a suit against a state and (ii) the strong constitutional policy of immunizing states against suits even when such suits are brought by the United States.

The State of Alabama is obviously the real respondent in interest here, for the named respondents, either in their individual or official capacities, have no authority to surrender to the Commission any official records in their custody. Thus, the state is an indispensable party to this proceeding, and process must issue to it if the application of the Attorney General is to be granted.

* 209 U.S. 123, 52 L. Ed. 714 (1908).

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