The Attorney General answered:

Well, I have always felt, Congressman, that the most lawyerlike way to approach the antilynching problem would be through a constitutional amendment. Congressman Forrester was interrupted, and never did ask the questions he evidently had in his mind:

(a) Would it be constitutional in the absence of a constitutional amendment;

(b) Would it be valid under the United Nations Charter?

Section 103 (a) gives a right of action for damages against any person violating the provisions of section 101. Section 103 (c) confers jurisdiction of such suits upon district courts of the United States regardless of the amount in controversy.

Senator WATKINS. Are you referring there now to one of these bills? Mr. BLOCH. Yes, sir.

Senator WATKINS. Which one is it?

Mr. BLOCH. I think it was on the committee print bill. It is on page 3 of what I designate as the subcommittee print.

Senator WATKINS. Thank you.

Mr. BLOCH. Section 103 (b), a party injured or threatened to be injured by a violation of title 18, section 594, or title 42, United States Code, section 1971, may bring injunctive proceedings to prohibit or prevent such injury. It further provides the Attorney General of the United States, in the name of the United States but for the benefit of such party, may bring the injunction.

Section 103 (c) provides that the district courts of the United States "shall exercise" jurisdiction "without regard to whether the party aggrieved shall have exhausted any administrative or other remedies provided by law and without regard to the amount in controversy."

These provisions convert the Federal equity courts into administrative bureaus so far as "civil rights" matters are concerned.

They violate and supersede every concept of equity jurisprudence with respect to injunctions heretofore known. They were probably thought up by someone as an answer to Justice Frankfurter's decision in Stefanelli v. Minard et al., supra.

From time almost immemorial the rule has been that injunction is an extratordinary power to be used sparingly and only in clear and plain cases (Irvin v. Dixon, 50 U. S. (10 Howard) 10).

Senator HRUSKA. Rendered what year, Mr. Bloch, approximately? Mr. BLOCH. 50 U. S.-I guess it would be before 1860. I can put the year in there.

Senator HRUSKA. That is sufficient.

Senator WATKINS. Mr. Bloch, I have a note here regarding an engagement I have to fulfill, and I am just a little bit late. I am awfully sorry I have to leave because I am very much interested in your discuscussion.

Mr. BLOCH. Thank you. I am sorry, too.

Senator WATKINS. It is not in disrespect to you or any of your testimony that causes my leaving; I want you to understand that. Mr. BLOCH. Thank you very much, Senator.

The Supreme Court of the United States, and all other appellate courts in the land, have repeatedly held that the courts should not intervene with the injunctive process unless in their judgment the need

for effective injunctive relief is clear, not "remote or speculative." See for example, Eccles v. Peoples Bank (333 U. S. 426), which is comparatively recent, within the last 8 or 10 years.

The Attorney General has said that such jurisdiction is warranted by the experience with the Sherman Act. I suggest to you that the provisions of this bill are not to be compared with the injunction features of the Sherman Act. (See title 15, United States Code, sections 4, 25, and 26.)

In the past few decades we have been steering clear of government by injunction. A striking example is the Norris-LaGuardia Act, United States Code, title 29, section 101, which provides:

*

No court of the United States *** shall have jurisdiction to issue any injunction *** in a case *** growing out of labor disputes except in strict conformity to

certain statutes.

If there should be enacted by the Congress any such unprecedented extension of the equitable powers and duties of the United States courts, it will mean 1 of 2 things: (a) The citizens of the Southern States are to be singled out for harassment by Federal injunctions, or (b) the theory of government by injunction will again be applied for the harassment of all citizens.

In either event, we can expect a multitude of contempt cases of which the recent Clinton, Tenn., case is only a sample.

From the substantive standpoint, the section is constitutionally void under the Reese case (92 U. S., supra), and under James v. Bowman, supra.

I wonder just what most Federal judges would think of a petition for injunction presented to him reading about like this:

The petitioner shows that his name is

He is an inhabitant of Georgia. He is a Buddhist. John Jones and others are registrars of County, Ga. They are threatening to deprive petition of his right to qualify to vote at a primary election to be held to nominate county officials in said county. They are so threatening on account of petitioner's religion. Wherefore, he prays that they be enjoined from depriving him of his right to qualify to vote.

Now, gentlemen, that may sound silly, but if you track the statutewhich is all you have got to do under the present rules of Federal civil procedure if you track the statute, that is all the petitioner would have to allege, in order to invoke the new equity powers of the Federal

courts.

I was particularly struck with the language and I am departing from the memorandum here I was particularly struck by this language in section 103 (c), of this subcommittee print:

The district courts of the United States shall have jurisdiction of proceedings brought pursuant to sections (a) and (b) and shall exercise such jurisdiction without regard to whether the party aggrieved shall have exhausted any administrative or other remedies provided by law and without regard to the amount of the matter in controversy.

Now, the reason that concerned me so was the use of the word "shall" the second "shall"-"shall exercise such jurisdiction." As I read that section, if a person who thinks he is aggrieved brings a petition, a complaint of the nature I have outlined here in this statement to a Federal judge, the time-honored principle, the old equitable principle which goes back as long as there have been any courts of

equity, that the granting of an injunction is purely within the discretion of the chancellor is gone, and the judge no longer sits as a chancellor but sits as one who must exercise that equitable jurisdiction, and not only are nullified the precedents, those old precedents I discussed in the Chief Justice Fuller case and the Alabama case nullified, Mr. Chairman, by the first clause of section 103 (c); but the second clause goes further than merely wiping out those decisions, but it goes further and it eliminates all discretion that the chancellor might have on the subject of whether or not he should exercise jurisdiction, and it says he shall exercise it.

Senator HRUSKA. Mr. Bloch, would you consider under that language that the mere exercise of that power would be coequal to a granting of the requested relief?

Mr. BLOCH. Yes, sir. I do not see what else it could mean "he shall exercise."

Senator HRUSKA. Then your idea is that that language would bind a Federal judge to accept for true without variation

Mr. BLOCH. No, sir.

Senator HRUSKA. Any allegations which are set forth

Mr. BLOCH. No, sir.

Senator HRUSKA. In the prayer for relief which is provided for in that section?

Mr. BLOCH. No, sir.

Senator HRUSKA. If that was not the intent, what else was?

Mr. BLOCH. Of course, he has to prove the allegation but upon proof of those allegations in that bill, then the traditional discretionary power of the chancellor is taken away.

Senator HRUSKA. Then I come back to my first question. Does it follow when a judge does exercise the power conferred in this statute that he must find in favor of the plaintiff?

Mr. BLOCH. That he must grant an injunction?

Senator HRUSKA. That he must grant an injunction.

Mr. BLOCH. Yes, sir; as I see it, that language takes away the discretionary power of a chancellor sitting as an equity judge.

Senator HRUSKA. Without the hearing of any testimony?

Mr. BLOCH. No, sir. Let me illustrate.

Senator HRUSKA. If he fails in his testimony the judge can turn down the prayer for relief; can he not?

Mr. BLOCH. Maybe I can explain it better as an illustration.

If I go to a court of equity, now, in Georgia and I think it is true of almost every other State in the Union, State and Federal courts, if I go into a court of equity, either State or Federal, and prove every word that is in my complaint and there is absolutely no proof to the contrary, or the proof is overwhelming that I have made out my complaint, still the judge sitting in the court of equity as a chancellor need not grant that injunction. He can exercise his discretion and he can balance the conveniences with respect to the granting or nongranting of the injunction.

Senator ERVIN. In other words, he can refuse to grant an injunction in the exercise of his discretion, notwithstanding the fact that he may find that the allegations of the bill of complaint are true?

Mr. BLOCH. That is it, certainly, and that is the law in Georgia and I think it is the law in almost every State in the Union, that is the general equitable principle, but it seems to me that section takes away

from the chancellor or from the judge any question with regard to his discretion, and if that complaint that I have just read there is proven, if there is evidence to support it, then he must grant the injunction with no discretion about it.

Senator HRUSKA. I am trying hard to follow you, Mr. Bloch, but I cannot quite see that the use of the words "exercise of jurisdiction" or "shall exercise such jurisdiction," quoting those words is the same as requiring the Federal judge to grant the relief prayed for.

Mr. BLOCH. Well, I have no right to argue with you, sir, of course, but if those words do not mean that, what do they mean, considering the phrase right before it, "the district courts of the United States shall have jurisdiction"?

Senator HRUSKA. That means they shall entertain it and hear proof and make a decision after the proof has been adduced.

Mr. BLOCH. Well, they have already said that the district courts of the United States shall have jurisdiction and shall exercise it. What is the use of saying both of them if they don't mean what I think they mean?

Mr. SLAYMAN. Mr. Chairman, with your permission, since I am chief counsel of the staff which is going to have to work on this language, perhaps Mr. Bloch would like to suggest some way of accomplishing what apparently the draftsmen wanted to accomplish here, since we are going to come back to all of this testimony in the record. I do not quite follow Mr. Bloch. Regarding "shall have jurisdiction" and "shall exercise such jurisdiction"-why cannot that jurisdiction be exercised and the relief denied?

Suppose the complaint is essentially a non sequitur, suppose all of the allegations are proved but they are still beside the point, could not the Federal judge sitting simply deny the prayer for relief?

"Exercise such jurisdiction" does not, as I understand it, mean granting affirmative relief. It could mean hearing them out, requiring further show-cause and still denying the relief. Is that not possible under "exercise such jurisdiction"?

Mr. BLOCH. That is possible, yes.

Senator HRUSKA. That is the point that I was driving at but my effort must have been too feeble. I am grateful to counsel.

Mr. BLOCH. No, Senator, I got it when you talked to me, but that is possible, if the evidence is overwhelming in favor of the complainant and the judge denied the injunction, he might say, "The evidence here is overwhelming but I have got a discretion and I am not going to grant this injunction, unbalancing all conveniences, I am not going to grant it."

Senator HRUSKA. In effect he is saying that he is not going to be confused by the facts.

Mr. BLOCH. Well, saying that he is going to adhere to the old equitable principles. Now, in that case that you put, Mr. Slayman, would not the appellate court immediately view it and say, "You have got no discretion on that"? The way that statute reads, if the burden of the evidence is in favor of the plaintiff, you ought to grant that injunction just like in a common law case, you ought to find for the plaintiff, your discretionary powers are gone.

Mr. SLAYMAN. Well, would you want to suggest a way of stating that so that it is very clear that discretionary power is to be reserved?

Mr. BLOCH. Well, the best way to do it is just to eliminate the whole business.

Mr. SLAYMAN. Well, as Senator Watkins stated it, there may be something in the impression that you are opposed to the whole legislation before the committee.

Mr. BLOCH. Well, I do not mean to say-I am just against it. I am trying to give you the reasons.

Mr. SLAYMAN. And that would be one of the reasons?

Mr. BLOCH. Yes, and I have been giving reasons since this morning, this is not just an unreasonable statement, just a blunt statement that I am against it, because I am trying to give reasons; but here I think we have centered on something so minor in comparison to the general principles that it is just something I just threw in, really, it is minor in comparison to the whole scheme of the thing.

We hear a great deal of talk about congestion in the Federal courts and the need for more judges. If this is the start of the expansion of Federal equity jurisdiction, we don't know anything yet about the need for more judges.

Title II of the bill is-Commission on Civil Rrights.

Section 201 (b) provides for the appointment of six members by the President by and with the consent of the Senate.

"Bipartisanship" seemingly is secured by the provision that the commission of 6, not more than 3 of the members shall at any one time be of the same political party. There is no geographical qualification. All 6 could be from one State, provided only that the political party test is applied. That does not, in the field of civil rights seem to be a criterion of impartiality.

In Panama Refining Co. v. Ryan (293 U. S. 388), the Supreme Court held unconstitutional an act of Congress delegating certain legislative powers to the executive. Justice Cardozo dissented, saying at page 435:

There has been no grant to the executive of any roving commission to inquire into evils, and, then, upon discovering them, do anything he pleases.

In Schricter Poultry Co. (295 U. S. 495), an act of Congress permitting the setting up codes of practice by a commission was declared unconstitutional. Justice Cardozo concurred there saying:

Here, in the case before us, is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here in effect is a roving commission to inquire into evils and upon discovery correct them.

In section 202 (a) of this bill we have a roving commission to inquire into evils. The Commission shall investigate allegations in writing (they need not be verified) that certain citizens of the United States are being deprived of their right to vote or that certain persons in the United States are voting illegally (by what standard is not set out), or are being subjected to unwarranted economic pressures by reason of their sex, color, race, religion, or national origin.

If sections 203 (a) to (f) are construed as giving to the Commission the power of correcting evils upon discovering them, then the bill is unconstitutional under the cases cited, and others of similar nature. If, however, it be said that the Commission has no power of correction, then the validity of its creation must be determined by another rule of law applying to committees or commissions having powers of investigation only.