Now about this Bolivia precinct in Brunswick County, I would like to know whether any Negroes there were denied the right to register and vote by this registrar!

Mr. BROWNELL. We will get that information for you.

Senator ERVIN. And I would like to know the same thing about the Snow Hill precinct in Green County.

Mr. BROWNELL. Very good.

Senator ERVIN. And I would like to know if you have got any other substantiated claims against registrars in North Carolina, because we have in North Carolina approximately 2,400 precincts, and we have 3 election officials in each 1 of those precincts, and that is almost 7,500 people, in the neighborhood of it, between 7,000 and 7,500, and if North Carolina's good name is to be blackened in this connection, it ought to be based on something besides the dereliction of 3 of approximately 7,500 election officials.

Senator HENNINGS. Did the Senator say there are only three in each precinct?

Senator ERVIN. That is all

Senator HENNINGS. One Republican and one Democrat?

Senator ERVIN. A Democratic registrar, a Republican judge, and a Democratic judge. Of course they have provision to bring in people to help them count in the case of large precincts. Under the North Carolina election machinery, we have a registrar to register the voters. We have laws providing every qualified citizen of the State is entitled to vote regardless of race. We have in each county a bipartisan county board of elections to which an appeal could be immediately taken from a registrar.

We have in the State a statewide bipartisan State board of elections composed of 3 Democrats and 2 Republicans, 5 of the finest citizens of North Carolina, and an appeal can be taken from any ruling of the county board of elections to the State board of elections.

I have lived in North Carolina all of my life. Although I have been active in politics, I have never heard of a single individual, until this morning, that has even been denied his right to register and vote on account of his race or color.

I want to follow the same order you did in reference to S. 83. I am just a little curious about your part 3, which is found on pages 14 and 15 of this bill.

This statute is not confined to the right to vote?

Mr. BROWNELL. To the what, Senator?

Senator ERVIN. It is not confined to the right to vote?

Mr. BROWNELL. That is right.

Senator ERVIN. It undertakes to amend a statute which is divided into three sections, the statute embodied in title 42, United States Code, section 1985.

The first section deals with preventing a Federal officer from performing his duties.

The second one deals with obstructing justice by interfering with witnesses and so forth, with which no one can have complaint.

I am just a little curious, however, about why you wish to amend the third section of it, in view of the decisions in the Harris case and in the Collins case.

In other words, your amendment which is embodied in Senate bill 83 undertakes to amend all three sections as I construe it. It adds an

additional section, which provides that when persons engage or about to engage in any of the acts or practices which would give rise to a cause of action pursuant to paragraphs 1, 2, or 3, the Attorney General may institute for the United States or in the name of the United States but for the benefit of the real party in interest a civil action, and so forth.

The third section of this statute is known as the old Ku-Klux Act. I read :

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another for the purpose of depriving either directly or indirectly any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws.

That clause was in issue in United States against Harris, which is reported in 106 United States at page 629.

In that case the Supreme Court of the United States held the provision of the statute which made those identical things crimes was unconstitutional because Congress had no power to enact it under either the 13th or the 14th or the 15th amendments.

I am curious as to why the amendment was drawn so as to provide that the United States can bring a suit to obtain injunctive relief against acts which the Supreme Court of the United States held in United States against Harris did not fall within the legislative domain of Congress under either 1 of the 3 amendments.

Mr. BROWNELL. I think I can answer that, Senator.

I tried to follow your remarks carefully. There is no attempt made here to redefine or to increase the scope of the substantive provisions of the sections 1, 2, and 3.

These sections 4 and 5 are added here as machinery to enforce whatever the constitutional authority of the Federal Government may be in this area, and does not add to the substantive provisions of the statute.

Senator ERVIN. Certainly, Mr. Attorney General, if Congress has no power to provide any criminal penalties for those acts under the Constitution because it has no right to legislate in that particular area, it certainly would have no right to enact a civil law.

Mr. BROWNELL. That is correct, and we are not asking that. Anywhere it has been ruled against under the Constitution of the United States, the Federal Government does not have authority to act, it would still be out under this proposed legislation.

We merely ask for the remedies to apply to those that are constitutional.

Senator ERVIN. I do not believe that we ought to be asked to provide civil remedies for the implementation of an unconstitutional statute. Mr. BROWNELL. No; and the proposals before you do not so provide. Senator ERVIN. That is before us too; isn't it?

Mr. BROWNELL. Yes; but when it refers to that, Senator, it refers to that as interpreted by the Supreme Court, and where the Supreme Court has held that any particular case is outside the Federal area, we of course are bound by that, and the proposals that we make for remedies would not apply in such case or set of facts.

Senator ERVIN. This also applies on the face of it to acts of individuals, and I might state that in the case of Collins v. Hardyman reported in Three Hundred and Forty-first United States Reports, page 651. there was an attempt to bring a civil action under this section. The

Court held that the plaintiff had failed to make sufficient allegations under this section. The Court pointed out, however, that it had been held in previous cases that actions of this kind could not be prohibited by Congress unless it was committed by a State.

The Court said it was not necessary to pass again on the question of constitutionality, however, because the complainants did not allege a sufficient case although their pleading was apparently drafted on that theory.

I believe it would have been wise to have eliminated the part of this statute which has been declared unconstitutional instead of asking us to enact a statute which amends a statute which the Court has declared to be unconstitutional.

Mr. BROWNELL. I want to assure you, Senator, that we are not asking for anything here which has been declared unconstitutional. We are not asking for any authority in that area, because we believe in the Constitution and will follow its provisions to the best of ou professional ability.

Senator ERVIN. Under the statute as it now exists, without the amendment proposed in part 3 of S. 83, a party injured by any of these acts which may have been constitutional is entitled to bring an action for recovery of damages.

If he is solvent and brings that action, he has to post a bond and run the risk of paying the costs if he loses, doesn't he, under present law?

Mr. BROWNELL, I would think so.

Senator ERVIN. And he has to compensate his own attorney?
Mr. BROWNELL. Yes.

Senator ERVIN. And his adversary, the defendant, would have a right to have the issues joined in that action tried before a jury, would he not?

Mr. BROWNELL. The general rules would apply there as to a jury trial.

Senator ERVIN. He would be given a jury trial, would he not? Mr. BROWNELL. That would depend, I suppose. There are certain preventive relief actions that could be brought here where there would not be a jury trial.

Senator ERVIN. The statute says the parties so injured or deprived may have an action for recovery of damages occasioned by such injury or deprivation against any one or more of the conspirators. That is the remedy prescribed by the existing law.

Mr. BROWNELL. Yes.

Senator ERVIN. And would the defendant not have the right to have the issues determined by a jury, and the right to be confronted in person by the plaintiff and the plaintiff's witnesses?

Mr. BROWNELL. There is no doubt of that.

Senator ERVIN. And he would have the right to cross-examine them?

Mr. BROWNELL. Oh, yes: this, however, is in areas as you pointed out which is in the existing law, and what we are especially appealing for this morning is the right to bring preventive action.

Senator ERVIN. As far as this particular statute is concerned, there is already a civil remedy provided in an action to be brought by the aggrieved party?

Mr. BROWNELL. Yes, I tried to point that out.

Senator ERVIN. And you are asking to amend it not only to allow action for damages, that is for redress which I would take it would be sufficiently broad to be brought for the recovery of damages, but also for preventive relief including an application for a permanent or temporary injunction, for a restraining order or other order. Mr. BROWNELL. I think that is an accurate statement, yes. Senator ERVIN. What class of civil cases other than cases under the antitrust law does the United States bring?

Mr. BROWNELL. Well, I think the Defense Production Act, Housing and Rent Act would be two examples.

Senator ERVIN. Those are statutes which affect directly things which belong to the Federal Government?

Mr. BROWNELL. Fair Labor Standards Act might be another example. No more directly than this, Senator.

Senator ERVIN. You mean to say that the statute itself provides offenses in the antitrust laws are offenses against the United States, civil offenses rather than against individuals, aren't they, the ones that the United States prosecutes !

Mr. BROWNELL. Yes, but here the rights even stem from higher authority and that is the Constitution of the United States.

Senator ERVIN. I know. You gave that as an illustration. The civil actions that are brought for the enforcement of the antitrust laws are primarily suits brought in the interests of the United States rather than in the interests of individuals?

Mr. BROWNELL. No, I would say that exactly the same analogy could be drawn between the two areas, civil rights and antitrust.

Very often the private individuals benefit, and you might say they are the real party in interest in injunction cases brought under the antitrust laws.

Senator ERVIN. That would be indirect rather than direct; would it not?

Mr. BROWNELL. No more so than it would be in this area. Senator ERVIN. The private individual who is injured by a violation of the antitrust law has a private suit?

Mr. BROWNELL. Yes, just as they do in the civil rights

Senator HENNINGS. Isn't it true, if I may interrupt my distinguished colleague, that the law contemplates in criminal actions especially, that any offense against an individual is also an offense, if it be a State, an offense against the State or the Government as the case may be?

Mr. BROWNELL. There is nothing unique in that respect.

Senator ERVIN. But to this precise moment in the history of this country, the individual has been left to bring his own suit for the redress of the private wrong, and the Government has engaged in the criminal prosecutions, haven't they?

Mr. BROWNELL. Yes, and we think that is a very great gap in the law.

Senator ERVIN. I will ask you as a matter of fact that if there is any other statute that has ever been enacted by Congress providing that the Federal Government shall bring private suits for the redress of injuries to private individuals?

Mr. BROWNELL. Oh, yes.

Senator ERVIN. What case?

Mr. BROWNELL. We can give you quite a long list.

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In addition to the Antitrust there is the Wage and Hour and the Housing and Rent Act, Defense Production Act. It is a normal thing for Congress to do, and we think a very bad omission in the civil rights area that we do not have that same authority.

Senator ERVIN. Mr. Attorney General, what provision is there in the Fair Labor Standards Act for the United States to bring suit for a private individual to recover his damages?

Mr. BROWNELL. We will furnish you with the exact statutory section.

Senator ERVIN. I wish you would.

Mr. BROWNELL. Yes, sir, we will be glad to.

Senator ERVIN. I do not claim to know all the law, but I am not familiar with any provision of the Fair Labor Standards Act that authorizes the United States Government to bring suit for a private individual.

It provides that the United States Government can bring suits, bring indictments for willful violations of the act and also provides that it can bring suits for the recovery of overtime and similar matters.

Mr. BROWNELL. I think that the Secretary of Labor, if he were here this morning, could show recovery of hundreds of thousands of dollars each year by the United States Government for the benefit of private individuals under the Wage and Hours Act.

Senator ERVIN. Under the suits that you contemplate that the Attorney General should bring under this act, the question whether a suit should be brought by the Attorney General is a matter of discretion; isn't it?

Mr. BROWNELL. That is right. He has his statutory obligation, of course, to act in enforcing the laws of the United States.

Senator ERVIN. And the Attorney General at his election can bring a suit for one individual and refuse to bring a suit for another individual?

Mr. BROWNELL. If the facts are different. If it is the same set of facts, I do not believe you would find that arising.

Senator ERVIN. I have heard it said that the facts in all cases are different. We say sometimes cases are on all fours and sometimes we say other things.

Mr. BROWNELL. Yes, that is one of the really just and fair provisions I think in our law which you undoubtedly are familiar with, that the Attorney General or any prosecuting official is given that discretion for the purpose of effecting true justice, and if he abides by his oath of office and is competent professionally, he can see to it that many individual justices are effected in that manner.

Senator ERVIN. He has to try a case in his own mind and come to to the conclusion that the particular party is in the right and the other man is in the wrong before he brings a suit; doesn't he?

Mr. BROWNELL. That is a pretty good way to put it, yes.

Senator ERVIN. In other words, the Attorney General tries the case first and he convicts the defendant in his own mind and then he brings a suit?

Mr BROWNELL. Oh, no, I am sure from your own experience, after thinking it over you would restate that, because the obligation of any prosecutor when he commences a prosecution, he must have in his possession enough information to indicate that there is a prima facie

case.