mission shall investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote." Presumably, the Commission has such sworn allegations, otherwise it is acting beyond its authority. Presumably, these allegations relate to the respondents, otherwise their testimony and records have no relevance. It is clear, therefore, that this investigation is but "the first step in proceedings calculated to bring about" criminal prosecutions against the respondents.21

It is not reasonable, we submit, to assume that a statute adopted in the name of civil rights should be construed to afford less protection to the civil rights of judicial officers of a sovereign state than the courts afford to foreigners subject to denaturalization.

IV. IF THE CIVIL RIGHTS ACT IS CONSTRUED TO EMPOWER THE COMMISSION TO COMPEL THE TESTIMONY OF STATE JUDICIAL OFFICERS AND THE PRODUCTION OF STATE RECORDS, IT IS INVALID

A. To the Extent That the Act Empowers the Commission to Compel Testimony of Persons Under Investigation, It Invades Powers Belonging Only to the Judiciary

In its investigation of charges that citizens have been deprived of voting rights the Commission is attempting to wield powers traditionally belonging to the judiciary and exercised through the machinery of grand juries. If it is free to roam the country and to investigate charges relating not only to deprivation of voting rights because of race or color but also to such deprivation because of "religion or national origin," it is indeed an inquisitorial body without precedent in this country. The validity of the exercise of the power to compel testimony from persons under investigation by an ad hoc agency of the executive branch of the federal government has never been passed upon by the United States Supreme Court and should not be recognized in absence of a clear mandate from that court.

In United States v. Minker, supra, since the case was decided on the ground of statutory construction, the court expressly stated that it was not called upon to consider the constitutional question of whether Congress may empower an agency "to secure evidence, under the authority of a subpoena, from a citizen who is himself the subject of an investigation.' If the Civil Rights Act is construed to grant such power, it is invalid, to that extent, as an attempt to confer judicial powers upon an executive agency.

24

19 22

This power is one which Congress has never attempted to confer upon the FBI or upon the Attorney General. If vested in such officers or in ad hoc committees, it is not unreminiscent of general writs and writs of assistance which are prohibited by the Fourth Amendment. It is true, of course, that subpoena powers have been vested in various administrative agencies of the government and that these powers have been upheld in varying contexts.* However, in all these cases the power is not used for purely inquisitorial purposes but is used by the agencies in carrying out their administrative functions. In all these cases the agencies have substantive laws which they are charged with enforcing and their investigative powers are merely ancillary to their primary functions. None of them have investigation of alleged crimes as a sole end, and, although the information obtained in the course of their investigations may indeed be used as the basis for later prosecutions, this is but an incidental result.

In vesting regular administrative agencies with subpoena powers, Congress has reached the limits of its own power. It cannot clothe with supoena powers ad hoc inquisitorial agencies which have no other function than to investigate. In this connection the short dissent of Mr. Justice Murphy in Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 218, 90 L. Ed. 614, 635 (1946) is apposite: "It is not without difficulty that I dissent from a procedure the constitutionality of which has been established for many years. But I am unable to approve the use of nonjudicial subpoenas issued by administrative agents.

21 See 18 U.S.C. §§ 241, 242.

22 350 U.S. at 190, 100 L. Ed. at 195.

23 See the concurring opinion of Mr. Justice Black in United States v. Minker, 350 U.S. at 191. 100 L. Ed. at 196.

See, e.g., §§ 9 and 10 of the Federal Trade Commission Act (15 U.S.C. § 49, 50); 9 of the Fair Labor Standards Act (29 U.S.C. § 209); §§ 7602-7604 of the Internal Revenue Code (26 U.S.C. §§ 7602-7604).

See, e.g., Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 90 L. Ed. 614 (1946).

"Administrative law has increased greatly in the past few years and seems destined to be augmented even further in the future. But attending this growth should be a new and broader sense of responsibility on the part of administrative agencies and officials. Excessive use or abuse of authority can not only destroy man's instinct for liberty but will eventually undo the administrative processes themselves. Our history is not without a precedent of a successful revolt against a ruler who 'sent hither swarms of officers to harass our people.'

"Perhaps we are too far removed from the experiences of the past to appreciate fully the consequences that may result from an irresponsible though well-meaning use of the subpoena power. To allow a non-judicial officer, unarmed with judicial process, to demand the books and papers of an individual is an open invitation to abuse of that power. It is no answer that the individual may refuse to produce the material demanded. Many persons have yielded solely because of the air of authority with which the demand is made, a demand that cannot be enforced without subsequent judicial aid. Many invasions of private rights thus occur without the restraining hand of the judiciary ever intervening.

"Only by confining the subpoena power exclusively to the judiciary can there be any insurance against this corrosion of liberty. Statutory enforcement would not thereby be made impossible. Indeed, it would be made easier. A people's desire to cooperate with the enforcement of a statute is in direct proportion to the respect for individual rights shown in the enforcement process. Liberty is too priceless to be forfeited through the zeal of an administrative agent."

It should never be forgotten that there is great danger inherent in the subpoena power even when vested in a permanent agency as a mere incident to its other powers. The subpoena power is historically and properly within the exclusive province of the judiciary. To invest ad hoc investigating agencies with such power is an invasion of the province of the judiciary which should not be countenanced by the courts. Not only would individual rights be jeopardized thereby but, as illustrated here, the foundations of federalism would be undermined by the unrestrained and impatient zeal of investigators for an executive agency with no direct responsibility to the people or to the legislative branch. B. The Subpena Power Which Congress Possesses in Connection With Its Investigatory Powers Is Not Delegable to an Ad Hoc Agency Which Has No Administrative Functions

It is conceded, of course, that Congress has power to conduct such investigations as are reasonably related to its legislative functions, but this power to investigate is not unlimited. Watkins v. United States, 354 U.S. 178, 1 L. Ed. 2d 1273 (1957). Nor can this power be delegated to private persons under color of a statute purporting to make these persons part-time agents of the executive branch of the government. It is true that there may be no objection to Congress' making use of information obtained in investigations conducted by regular agencies in the course of their administrative functions. But this cannot be thought to include the power to make a naked delegation of its investigatory functions to ad hoc commissions such as the Commission on Civil Rights.

26

But whatever may be the power of Congress to delegate its investigative functions, it must adequately define the jurisdiction of the body to which its power is delegated. In Sweezy v. New Hampshire, 354 U.S. 234, 245, 1 L. Ed. 2d 1311, 1322 (1957)," the court said:

"Responsibility for the proper conduct of investigations rests, of course, upon the legislature itself. If that assembly chooses to authorize inquiries on its behalf by a legislatively created committee, that basic responsibility carries forward to include the duty of adequate supervision of the actions of the committee. This safeguard can be nullified when a committee is invested with a broad and ill-defined jurisdiction. The authorizing resolution thus becomes especially significant in that it reveals the amount of discretion that has been conferred upon the committee."

The "authorizing resolution" for the Commission on Civil Rights is the Civil Rights Act, and the power which Congress has attempted to delegate are found in § 104 of the Act. These powers include not only the power to investigate

20 See, Opp Cotton Mills v. Administrator, 312 U.S. 126, 144, 85 L. Ed. 624, 635 (1941). 27 The Sweezy case involved an attempt by the legislature of New Hampshire to constitute the state attorney general as a "one man investigating committee" for the legislature. The United States Supreme Court indicated that if this had been done on the national level, it would have involved an arrogation to the legislature of judicial powers in violation of the doctrine of separation of powers. 354 U.S. at 255, 1 L. Ed. 2d at 1327.

deprivation of voting rights because of race and color, and power which if exercised by Congress itself could be sustained within reasonable limits under the Fifteenth Amendment, but also the power to investigate such deprivation because of religion or national origin, a power which could not be exercised by Congress itself.

As interpreted by the Commission,28 its powers in the field of the "political processes" of the state are of unrestricted compass. The Commission does not feel itself limited under § 104(a)(1) of the Act to the investigation of particular allegations but construes its power to permit it to issue blanket subpenas to reach state records and state officials with respect to any matter affecting "fundamental political processes", in the words of the Vice-Chairman. Under such construction of § 104 (a) (1), the attempted delegation of power to the Commission must fall, if for no other reason, because of failure properly to circumscribe the extent of delegation.

C. The Coerced Testimony of Respondents Has No Relation to the Legislative Functions of Congress

Even if Congress could delegate its investigatory powers to the Commission on Civil Rights, so that it could be said that the Commission acts with the full power of the national legislature in that regard, the inquiry must be related to the law-making powers of that body. Congress is not a law enforcement agency, a grand jury, or a trial court. Its powers do not include the power to expose simply for the sake of exposure. See, generally, Watkins v. United States, 354 U.S. 178, 198, 1 L. Ed. 2d 1273, 1290 (1957), in which the Chief Justice stated: "We cannot simply assume, however, that every congressional investigation is justified by a public need that overbalances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly."

No more can it simply be assumed that this present investigation is justified by a public need which overbalances, in our federal system, the need of state governments and state courts to have their records immune from seizure or the right of state officials to be immune from coercion with respect to their official acts. In order to justify an attempt by the Congress to order state officials to testify with respect to their official acts and to compel the production before Congress of state records, a compelling need must be shown and such need must relate to the law-making functions of Congress.

But whatever might be the power of Congress and its own committees, and whatever might be the ability of Congress to delegate that power to the Commission on Civil Rights, the Commission itself must operate within the scope of its authority and only in regard to the functions specified in the Act. In order to compel the attendance of state officials and the production of state records, it must show the actual necessity of such attendance and production, and this necessity must relate to the law-making functions of its parent body. Under the principle of the Watkins case, the right of Congress to have information necessary for law-making must be balanced against the right of states to have neither their records nor officials subjected to the coercive power of Congress' delegate.

In its capacity as a fact finding board for Congress, as distinguished from its unlawful capacity as a roving national grand jury, the Commission's funetion in this regard is legitimate only to the extent that the investigation discloses, or is directed toward disclosing, information which is of value to Congress for the purpose of making future laws on the subject. Now, even if we assume that the testimony of respondents and the contents of the subpoenaed records contain such information, is this information so necessary, or so inaccessible elsewhere, or by more usual and reasonable means, as to justify coercion by the Commission against a state and its officials? " The answer is an emphatic negative. The Attorney General in his application for enforce

29

See the application of the Attorney General herein, the supporting affidavit of Gordon Tiffany, and the opening statements of the Chairman and Vice Chairman of the Commission on December 8, 1950.

29 As a general rule it would be obviously absurd to permit a witness to decline to testify on the grounds that his testimony was not really needed or that the information sought could be obtained elsewhere. However, this is not the normal case, but a case involving "delicate" state-federal relationships, and the courts are quick to avoid any "inflammation" of those relationships. See Francis v. Lyman, 216 F. 2d 583 (1st Cir. 1954).

ment "has fallen short of showing a controlling justification" for such coercion against the state and its officials. National Association for the Advancement of Colored People v. Patterson, — U.S. —, 2 L. Ed. 2d 1488, 1502 (1958).

The Commission is restricted by § 104(a) of the Act to the investigation of allegations in writing under oath that citizens are being deprived of voting rights. Presumably, the hearing at which respondents are ordered to appear relates to such allegations; otherwise the hearing is unauthorized. The information sought to be elicited from respondents is obviously expected to corroborate the allegations, for it is hardly to be supposed that respondents have been ordered to testify in order to “exonerate” themselves. So far as "exoneration” is concerned, this is certainly a matter personal to respondents, who, if they desire, may voluntarily request to appear under § 102(e) (2) of the Act, and do not need the assistance of a seizure of their persons by the Marshal. On the other hand, a purpose to compel them to incriminate themselves would hardly constitute a proper ground for process.

In any event, using the test of the Watkins case, it is clear that the value of whatever testimony respondents might give is so overbalanced by the undesirable implications of permitting Congress, through an ad hoc committee, to exert coercion against the state and state officials that it must be held that such coercion is not reasonably related to the law-making functions of Congress. D. Judicial Officers of the State Cannot be Compelled to Testify With Respect to Acts Performed in Their Judicial Capacity

The rule that judicial officers are immune from civil liability for acts done in the course of their official functions is so well established that it requires but brief mention. As stated in Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646, 649 (1871):

"The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries where there is any well ordered system of jurisprudence. It has been the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country."

For more recent cases, see, e.g., Kenney v. Fox, 232 F. 2d 288 (6th Cir. 1956), cert. den. 352 U.S. 855 (1956); Francis v. Crafts, 203 F. 2d 809 (1st Cir. 1953); cert. den. 346 U.S. 835 (1953).

If a judge could be compelled to answer in a civil action for his judicial acts, the independence, dignity and usefulness of the judiciary would obviously soon be destroyed. The case at bar, although it does not involve damages, is a civil action, and the same rule applies. Indeed, the implications here are far more serious. If judicial officers of either the state or national governments can be summoned before an ad hoc inquisitorial body, and be compelled to testify with respect to their judicial acts, it marks the demise of the judiciary as an effective and independent branch of government. The concept of the immunity of judges is so deep-rooted in our governmental scheme that nothing in the constitution can be construed to permit Congress to destroy that immunity.

The respondent registrars are declared by the Constitution of Alabama (Amend. 91) to be judicial officers; and the determination of whether applicants are entitled to registration is declared to be a judicial function. These respondents are entitled, therefore, to the same immunity as other judicial officers of the state and cannot be questioned with respect to the motives and grounds for their registering or failing to register voters.

Nor can respondent George Wallace, who is judge of the Third Judicial Circuit of Alabama, be compelled to testify with respect to the motives, circumstances, and considerations which governed him in entering a judicial decree ordering the records of Bullock and Barbour Counties impounded for action by the grand jury.

E. With Respect to the Records Impounded by the Third Judicial Circuit of Alabama, the Rule is Applicable That When a Court Has Once Taken Into Its Jurisdiction a Specific Thing, No Other Court Has a Right To Interfere With or Change That Possession

Prior to the issuance of the Commission's subpoena, respondent Wallace, acting in his capacity as Circuit Judge of the Third Judicial Circuit of Alabama, had impounded all of the registration records of Barbour and Bullock Counties. He

did so pursuant to petitions filed by residents of those counties and ordered the record held for inspection and action by the grand jury. The records are therefore in custodia legis, and were in the custody of the court at the time that the subpoena was issued.

It is a cardinal rule of law that when a court has taken jurisdiction of a res, no other court has the right to interfere with that possession. 14 Am. Jur. 446; 170 A.L.R. 334.

The rule is not only applicable between courts in the same system but is applicable between federal and state courts. The Supreme Court well expressed the general rule and its particular application to federal and state courts in the case of Covell v. Heyman, 111 U.S. 176, 182, 28 L. Ed. 390, 392 (1884). The court there said:

"The forbearance which courts of coordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principal of comity with perhaps no higher sanction than the utility which comes from concord; but between State Courts and those of the United States, it is something more. It is a principle of right and of law and, therefore, of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and, although they co-exist in the same space, they are independent and have no common superior. They exercise jurisdiction, it is true, within the same territory but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other, as if it had carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void. The regulation of process, and the decision of questions relating to it, are part of the jurisdiction of the court from which it issues." [Emphasis added.]

The use of the word "comity" is possibly misleading in this context since it has two applications one of discretion where an in personam action is involved, and one of ouster of jurisdiction when the subject of the controversy is in rem. The distinction is clearly set forth by Justice Frankfurter in the case of Toucey v. New York Life Insurance Co., 314 U.S. 118, 135, 86 L. Ed. 100, 105 (1941) Quoting from the case of Kline v. Burke Constr. Co., 260 U.S. 226, 67 L. Ed. 226): ""The rank and authority of the [federal and state] courts are equal but both courts cannot possess or control the same thing at the same time, and any attempt to do so would result in unseemly conflict. The rule, therefore, that the court first acquiring jurisdiction shall proceed without interference from a court of the other jurisdiction is a rule of right and of law based upon necessity, and where the necessity, actual or potential, does not exist, the rule does not apply. Since that necessity does exist in actions in rem and does not exist in actions in personam, involving a question of personal liability only, the rule applies in the former but does not apply in the latter.'

Applying the general rule with respect to the Fourteenth Amendment is the case of Llano Del Rio Co. v. Anderson-Post Hardwood Lumber Co., 79 F. Supp. 382 (W.D. La. 1948), aff'd., 187 F. 2d 235 (5th Cir. 1951). There the state court had taken possession of property pursuant to a state court receivership. The plaintiff brought suit in the United States District Court, jurisdiction being predicated upon a denial of equal protection of the laws under the 14th Amendment and the express provisions of the Civil Rights Act giving jurisdiction to the District Court. The District Court, however, refused to take jurisdiction, stating:

“*** I do not believe that the rule of comity, which denies to one court the right to take property from another, and the universal doctrine, that only the court which renders a voidable judgment has the power to set it aside, are affected by the provisions of the Constitution and the Federal Statutes relied upon by the plaintiff in this case." Id. at 394.

Thus, it as apparent that since the records sought by the Commission are impounded in the Third Judicial Circuit of Alabama, this court has no jurisdiction to take possession of such records and, a fortiori, cannot compel respondent Wallace to turn over the records to the Commission.

That such a conclusion is required is further demonstrated by the effect of such an order. An order to surrender these records to the Commission would act as a stay of all state court proceedings on the subject matter. Obviously, no investigation can be made of voting irregularities without the voting records. As this court kuows, the federal courts are prohibited from