competence of Judge Wallace to decide. As the Supreme Court stated in Tarble's Case, 13 Wall. 397, 407:

"Whenever, therefore, any conflict arises between the enactments of the two sovereignties, or in the enforcement of their asserted authorities, those of the National government must have supremacy until the validity of the different enactments and authorities can be finally determined by the tribunals of the United States. This temporary supremacy until judicial decision by the National tribunals, and the ultimate determination of the conflict by such decision, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two governments."

In other words, the only judicial issue which must now be decided is whether the records, having been impounded by the state (acting through one of its judges) should be made available for inspection to the Federal Government (acting through a commission established by Congress). That issue is the issue of comity, and it must be decided by this Court." While it may well be a proper judicial function of Judge Wallace to impound records," it is a judicial function of this Court to determine whether impounded records should be made accessible to the Federal Government.

Moreover, Judge Wallace is not being subjected to an accounting for a courtroom or other judicial decision but he is merely being called upon to produce or make available evidence to an investigating commission authorized by Congress.13 As previously indicated, no interference with state proceedings is involved; the compulsory process was issued to him in his capacity as custodian. Cf. Ex parte Virginia, supra (the character of the agent does not determine the character of the function). Accordingly, like all other persons who have relevant information, he has on obligation to make it accessible upon demand to the authorized agency."

Even in the absence of a federal interest, the general duty to furnish evidence would necessitate production of the records. See Wigmore, Evidence (3rd ed.) §§ 2372(3), 2373, 2192, 2193. In State v. Donovan, 129 N.J.L. 478, 488, 30 A. 2d 421, 427, the court held that inferior-court judges are subject to subpoena by a higher court, citing White Mountain Freezer Co. v. Murphy, 78 N.H. 308, to the effect that:

"The duty rests upon every citizen to disclose, when called upon, facts within his knowledge essential to the administration of justice. Judges are not exempt from the performance of this duty and as a class are necessarily impressed with its importance."

Any possible inconvenience to Judge Wallace in the performance of his official duties can of course be avoided by an appropriate order of this Court which takes into account the obligations of both the Judge and the Commission.

C. The status of the registrars

Obviously if, as demonstrated above, Judge Wallace may be compelled to comply with the subpoena, notwithstanding his judicial position, then the registrars have no basis for objection on the ground that they are judicial officers. But, in any event, it is quite clear that under Alabama law the registrars are not judicial officers, nor, perhaps even more to the point, do they perform judicial functions.

It is true that Alabama Code 1940, Title 17, Section 24, provides that "registrars are judicial officers and shall act judicially in all matters pertaining to the registration of applicants." Amendment XCI to Section 181 of the Alabama Constitution of 1901, captioned "Voters' Qualification Amendment" contains à proviso that members of the board of registrars "are hereby constituted and declared to be judicial officers, to judicially determine if applicants to register have the qualifications hereinabove set out."'

11 The problem of comity is discussed in Point III, infra.

12Although there is some doubt even on that score. See Title 13, Section 124 of the Alabama Code.

13 The subpoena also appears to contemplate the eliciting of testimony from Judge Wallace. Any objection that the testimony sought relates to matters having to do with the performance of a judicial function could be raised at the hearing. However, there is no reason to assume that any question subject to this objection would be asked. Compliance with the subpoena duces tecum would require no testimony.

14 Cf. In re Investigation of Circuit Judge, 93 So. 2d 601 (Sup. Ct. Fls.) wherein the court decided that a Bar disciplinary committee could issue a subpoena to a circuit judge for the purpose of an investigation within its authority.

This Amendment was adopted in 1951 after the previous so-called Boswell Amendment was set aside in Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.), aff'd, 336 U.S. 933.

However, it appears that registrars are given this designation only because they are called upon to "judge" whether or not an applicant is qualified to be registered as an elector. The purpose is to afford registrars an area of discretion in permitting or refusing registration. The "discretion" in the registrars is calculated to place upon an applicant who has been refused registration the burden of "showing arbitrary action." Malone v. Jones (1921) 219 Ala. 236, 122 So. 26. Otherwise, by decisions of the Supreme Court of Alabama, registrars constitute administrative boards and do not exercise judicial functions. Boswell v. Bethea, (1942), 242 Ala. 292, 295, 5 So. (2d) 816; Hawkins v. Vince, (1947) 240 Ala. 165, 30 So. (2d) 451. It should be noted that both of these cases (and no later decisions have been found) were decided prior to the 1951 Constitutional amendment; however, they were decided in light of Section 25 of Title 17 of the Alabama Code, which also states that registrars are "judicial officers and shall act judicially in all matters pertaining to registration of applicants." In the Bethea case the Supreme Court of Alabama set forth in extenes the proposition that the functions of the registrars are identical with the functions of an administrative agency making quasi-judicial determinations. In support of its holding the Court cited at length decisions of the United States Supreme Court dealing with Federal administrative agencies, in considering the nature of judicial review of the decisions of such agencies.

In any event, regardless of their nominal status under state law, registrars cannot be given an immunity from the exercise of a federal function such as that involved in this case. Otherwise, assuming respondents' contentions to be correct, any state legislature could deprive Congress of the power to pass "appropriate legislation" to enforce the Fifteenth Amendment, simply by turning over their whole election process to "judges."

Moreover, with respect to production of voting records the function of registrars is clearly not judicial. They are merely custodians. The judicial character of a particular function must be determined by the nature of that function and not by the characterization of the agent. In Ex parte Virginia, 100 U.S. 339, an assertion was made that a state judge who selected jurors for the ensuing term of court was performing a judicial act. The Court flatly rejected this contention pointing out that any state agent could legitimately fulfill this function and need not be a judge. The mere fact that a judge was performing this function was irrelevant. Similarly, these registrars as custodians are performing no judicial act. Under no view of the law can they be held to be immune from Commission subpoena.

III. IN THE CIRCUMSTANCES OF THIS CASE THE PRINCIPLE OF COMITY DOES NOT PRECLUDE THE ISSUANCE OF A SUBPOENA

16

A. The principle of comity is a judicial rule designed to prevent conflicts between sovereigns. It prohibits interference with the judicial machinery of a sovereign which has assured custody or control of a person or res which is the subject matter of litigation. It must be emphasized, however, that in the present case, insofar as the records impounded by the state court are concerned, the request of the Commission does not abrogate any right based upon the concept of comity, inasmuch as there is no conflict other than that which the state has needlessly created. Since it is apparent that the records in question may be used by the Commission without intruding upon the legitimate functions of the state court, there is no necessity which requires that the Commission defer its investigation of those records. Indeed, in view of the fact that the Commission is an agency created for a limited life," necessity would seem to preclude delay. The Commission is, of course, willing to accommodate the interests of the state by arranging to use the records at such times as, in the view of this Court, its use will not inconvenience the state. Had the state officials indicated a willingness to make such an arrangement-instead of refusing to testify or even to appear-the present litigation could easily have been avoided. To the extent that the state, acting through its officials, has indicated an unwillingness even to consider a reasonable scheme for accommodating the interests of another sovereign, it has denied the existence of any principle of reciprocity and mutual good will which would require the other sovereign to defer to its interests. It would be absurd indeed to permit the state to invoke the rule of comity to protect it from a conflict

16 The comity argument of respondents does not apply at all to the records which are not Impounded by state court. It is due to go out of existence on November 8, 1959.

created solely by its own unreasonable and unnecessary refusal to cooperate with the sovereign against which it wishes to apply that rule.

B. The cases in which the principle of comity has been invoked (see, e.g., Corell v. Heyman, 111 U.S. 176) are inapposite. Thus in Penn General Gas Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, the Supreme Court said (at 198):

"While it is often said that of two courts having concurrent jurisdiction in res, that one first taking possession acquire exclusive jurisdiction [citations omitted], it is exclusive only so far as its exercise is necessary for the control and disposition of the property. The jurisdiction does not extend beyond the purpose for which it is allowed, to enable the court to exercise it appropriately and avoid unseemly conflicts." [Emphasis added.] Accord, e.g., Wabash R. Co. v. Adelbert College, 203 U.S. 38, 54; United States v. Klein, 303 U.S. 276; 231; cf. Ex parte Turner, Fed. Cas. No. 14,246.

Where the disposition of property is involved it is obvious that the decree of one court may render the decree of another court entirely ineffective. The potential conflict is patent. See United States v. Bank of New York and Trust Co., 296 U.S. 463. It is to take care of such situations that the rule has been established that the court "first taking possession acquires exclusive jurisdiction." But in the present case there is no such conflict. Inspection by the Commission will not affect the proceedings in the state court. The records obviously may be used by both the state court and the Commission without interference with the power or effectiveness of either. Here there is no necessity which requires a federal court to restrain officials from taking appropriate action in order to avoid "unseemly conflicts." Such restraint, in the circumstances of the instant case, would constitute acceptance and encouragement of an unreasonable refusal to accommodate the interests of the Federal Government. State officials cannot be permitted to employ in justification for their actions a conflict which they have created and which it is well within their power to eliminate.

In short, the rule which the Government urges this Court to apply is a very limited one. It is that where evidence in the custody of a state court is sought by the Federal Government a federal court may invoke its power to compel the state court to grant access to the evidence at such times and in such a manner that there will be no interference with any function of the state.

C. This rule may well exclude situations where a private party seeks to obtain evidence for use in a private law suit. See In re Moody, 10 F. Supp. 825 (J. 9., Tex.). Such a case is easily distinguishable on the ground that the private interest asserted does not rise to the dignity and importance of the public interest asserted by the Federal Government in its obligation and duty to enforce the Fifteenth Amendment by appropriate legislation.

In analogous situations the Supreme Court has indicated that the restrictive rules which forbid interference with the judicial machinery of the sovereign first assuming jurisdiction are not inflexibly applied where the United States asserts a paramount interest.18 For example, in Leiteg Minerals, Inc. v. United States, 352 U.S. 220, the Court held that 28 U.S.C. 3233 (which forbids the issuance of an injunction to stay state court proceedings) does not apply where the United States is the plaintiff. The Court stated that the statute would be limited so as to prevent a "frustration of superior federal interests that would ensue from precluding the Federal Government from obtaining a stay of state-court proceedings. ***" (352 U.S. at 226). It is interesting to note that the policy underlying the statute there favored is the same as that underlying the rule of comity. Wells Fargo & Co. v. Taylor, 234 U.S. 175, 183. In other words, the role of comity, being a rule of self-limitation, is inapplicable where the sovereign rights of the United States and the supremacy of its constitutional duties are in jeopardy. It should not be applied here.

D. Another factor exists in this case which is not present in the usual comity situation. Normally, the Federal authorities and the state court have parallel objectives which are focused upon a single res. The typical case is that of the prisoner sought by both sovereigns for infractions of the laws of both. In such a situation, the rule of avoiding unnecessary conflict with respect to the single, indispensable object is both necessary and salutary. But in the instant case, the objectives of the two sovereigns are not parallel. On the contrary.

18 The comity rule does not apply in situations where the federal courts "exercise jurisdiction for the purpose of enforcing the supremacy of the Constitution and the laws of the United States." Covell v. Heyman, 111 U.S. 176 at 179.

The Commission's purpose is to determine whether the state and its officials have been denying to citizens of the United States their rights under the Fourteenth and Fifteenth Amendments. The state is the object of the federal inquiry; it is not a competitor in a purpose to attach jurisdiction to a third party.

Clearly, the object of the inquiry should not be permitted to set up an interest of its own in evidence necessary to the inquiry in order to defeat that inquiry altogether. An official who is being charged with falsifying documents in his possession cannot refuse to permit inspection of those documents on the ground that they are official papers immune from scrutiny. The same principle applies here, in the sense that comity cannot be set up by the state as a barrier to a legitimate federal inquiry into state conduct.1o

IV. REGISTRARS ARE NOT EXCUSED FROM COMPLYING WITH A SUBPOENA DUCES TECUM ON THE GROUNDS THAT THEY ARE NO LONGER REGISTRARS, AND THAT THE DOCUMENTS IN ISSUE ARE BEING HELD BY THIRD PARTIES

The fact that two registrars have resigned their offices does not relieve them of the duty of complying with the subpoena.20 Title 17, Section 22 of the Alabama Code states, as regards the term of office of a registrar:

"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, with or 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." [Emphasis added.] In previous cases where officials have attempted to avoid the responsibilities of their offices by resignation, the courts have held that resignation does not terminate the duties of an official where the applicable statute specifies that he remains in his office until his successor is appointed or qualified. In Badger v. United States, 93 U.S. 599, where an Illinois statute provided that an officer held his office until his successor had taken an oath and was qualified," the court held that the auditors' resignation did not terminate their responsibilities, saying (93 U.S. at 604) :

"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; see 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."

A similar holding is found in United States v. Justices of Lauderdale, 10 Fed. 460, where justices of the peace resigned to avoid a court order requiring them to levy taxes. The court held that, by the state law in issue, the justices of the peace were responsible to perform their duties "until their successors were appointed." The justices were held in contempt but penalty was suspended and they were given another chance to comply with the mandamus. Applying the foregoing precedents to the Alabama statute which provides that the term of a registrar in office is "four years and until his successor is appointed," it would appear that the registrars could not effectively terminate their responsiiblities until their successors had been appointed.

Clearly, if the registrars are invested with the responsibilities of their office until successors are appointed, they remain subject to the order of this Court to appear and to produce documents.

* might

discrimi

19 Cf. Yonley v. Lavender, 21 Wall. 270, 282: "It is possible, though not probable, that State legislation nate injuriously against the creditor living outside of the State; but if this should unfortunately ever happen the courts of the United States would find a way, in a proper case. to arrest the discrimination, and to enforce equality of privileges among all classes of claimants, even if the estate were seized by operation of law and intrusted to a particular jurisdiction."

20 This argument addresses itself specifically to the production of records. As demonstrated elsewhere the obligation to give testimony exists regardless of the duty to produce. 21 The officers in the case were county auditors who resigned; no new auditors were appointed, and therefore a creditor was left without any recourse for the payment of his

debt.

23 The fact that the Alabama statute states that the registrar "may" rather than "shall" hold office for four years does not distinguish it from the above-cited cases. In Cooper v. Hawkins, 226 Ala. 288. 147 So. 432, the Supreme Court of Alabama indicated that the word "may" was used to make it clear that a registrar might be removed from office peremptorily. Moreover, the rationale of the Badger and Lauderdale cases is not at all affected by the wording.

With respect to those registrars who claim that they no longer have possession and control, it is sufficient to state that this is a matter which must be demonstrated to the satisfaction of this Court.

Apart from the foregoing consideration, the registrars' refusal to be sworn is entirely without justification. The nature of a subpoena is not merely to command attendance, but attendance and testimony. The party subpoenaed has no choice in this respect. He may refuse to answer questions or produce documents on the ground of privilege, but has no right to refuse to be sworn, where as here the subpoena is at least prima facie legal.

Voting records may be removed from their respective counties

Respondents contend that under Alabama law voting records may not be removed from the county in which they are located and that accordingly they were not subject to be produced at the Montgomery hearings. The short answer is that the federal Civil Rights Act permits the Commission to subpoena voting records from any place within a State." Accordingly, any State law conflicting with this power must give way and the records must be produced. But in any event there appears to be no objection under Alabama law to the production of voting records at any place within the State.24

Title 7, Section 3 (1955 Supp.) of the Alabama Code forbids removal of court records from a county, but this section relates only to judicial records (which is the chapter heading), such as those which are filed in the various courts in particular cases. But this section has no application to records kept by voting registrars. Such records are prepared and kept pursuant to the provisions of Title 17, dealing with Elections, and pursuant to Amended Section 121 of the Alabama Constitution (Amendment XCI). There is no provision in this Title or in the Constitutional Amendment which would indicate that voter registration records are to be considered judicial records within the intendment of Title 7, Section 3.

Nor is this rule affected by the fact that Judge Wallace impounded some of the records. Title 7, Section 3 provides that "no records or papers of any court must be removed out of the county *** unless by order of the court * But this provision seems to refer to pleadings and other such formal records, and not to evidence. Moreover, removal from the county for the purpose of accommodating an important federal interest would not violate the purpose of the statute inasmuch as even Section 3 specifically contemplates removal in some circumstances "by order of the court."

In any event, if this Court should hold otherwise, the Government would be willing to make use of the records without removing them from the county in which they are located."5

CONCLUSION

Wherefore, it is respectfully submitted that the motions to vacate should be denied and that all respondents be required to appear, testify, and produce records at the hearing of the Commission in Montgomery on January 9, 1959.

W. WILSON WHITE,

Assistant Attorney General. HARTWELL DAVIS,

United States Attorney. JOSEPH M. F. RYAN, JR., Attorney, Department of Justice.

I hereby certify that I have served a copy of the foregoing on John M. Putterman, Attorney General of the State of Alabama, and Attorney for George G. Wallman, et als by handing same to him on this December 31, 1958.

HARTWELL DAVIS, United States Attorney.

23 Section 102(k) of the Act clearly contemplates that a subpoenaed party may be compelled to testify and to produce records at a hearing held anywhere within a state. 24 Respondents do not rely on secrecy or confidentiality of such records and of course could not do so. Cf. Davis v. Schnell, supra; Pope v. Howie, 227 Ala. 154, 156, 149 So.

222.

25 This would also meet the claim that the voting records are voluminous and that transporting them would create a hardship. Again, because of respondents' lack of cooperation such physical problems could not heretofore be discussed. But they, too, may of course be considered in any order of the Court granting the Commission reasonable access.