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territory but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other, as if it had carried physically into a different territorial sovereignty.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

staying state court proceedings except in special enumerated circumstances. 28 U.S.C. § 2284. This proceeding is not one of the special circumstances. Thus, though not counched in terms of a stay, the practical effect of the proposed order requiring production of the records would more certainly prevent all future action by the state court and grand jury than a specific injunction.

F. The Records of State Governments are Privileged and They May Not be Ordered Produced By the Commission on Civil Rights

31

30

As previously stated, the power of Congress to investigate as an incident to its legislative power is not unlimited. For example, the Fourth and Fifth Amendments to the Constitution serve as limitations upon the power of Congress to investigate; but such limitations are not confined to the express provisions of the Constitution. In Kilbourn v. Thompson, 103 U.S. 164, 191, 26 L. Ed. 377, 387 (1881), the court said:

"It is also essential to the successful working of this system, that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other."

This statement is, of course, addressed to the question of separation of powers on the national level. This question, as it relates to the power of the executive branch to withhold records from Congress, is discussed in a recent article by Attorney General Rogers," who concludes that records of the executive are privileged from seizure by Congress. The Attorney General states:

**** Just as no private citizen or business entity can conduct its business under constant public scrutiny so judges, legislators or executive officials cannot conduct all public business at every step of the way in public." " This position was asserted by the government in this court only a few years ago and the action of this court in denying the claim of privilege was reversed by the Court of Appeals. Overby v. United States F. & G. Co., 224 F. 2d 158 5th Cir. 1955). There the question was the claim of privilege by the Secretary of Treasury in regard to records of the Comptroller of the Currency. The privilege belonging to the Government." Id. at 161, n 2.

The considerations are the same when the question is the power of the legislative branch of the national government to coerce the production, publication, and surrender of state records. The scope of the supremacy clause of the Constitution is not so broad as to empower Congress to undermine the workings of state governments.

V. THE COMMISSION HAS FAILED TO LIMIT ITS INQUIRY TO THE INVESTIGATION OF ALLEGATIONS IN WRITING UNDER OATH OR AFFIRMATION THAT CERTAIN CITIZENS OF THE UNITED STATES ARE BEING DEPRIVED OF THEIR RIGHT TO VOTE

Section 104(a)(1) of the Civil Rights Act of 1957 limits the Civil Rights Commission to the investigation of specific complaints in writing. Congress .did not authorize the Commission to conduct a fishing expedition into the method of applying the voting registration statutes of the states." To the extent that the order of the court requires the production of all the voting records of three counties it gives judicial sanction to powers not delegated to the Commission.

The reasons for safeguards against such broad power are obvious. First, as discussed previously, it is necessary to prevent unreasonable burdens upon the conduct of the affairs of the person or entity whose records are required to be produced. It has been held that a broad subpoena duces tecum covering extensive books and papers of a corporation is an unreasonable search and seizure forbidden by the Fourth Amendment. The same considerations should

35

See, e.g., Hearst v. Black, 87 F. 2d 68 (D.C. Cir. 1936).

31 Watkins v. United States, 354 U.S. 178, 1 L. Ed. 2d 1273 (1957).

Rogers, Constitutional Law: The Papers of the Executive Branch, 44 A.B.A.J. 941 (1958). 33 44 A.B.A.J. at 942.

34 In Darby v. Daniel, which has not yet been reported, a three-judge federal court sitting in Mississippi dismissed an action alleging deprivation of voting rights. The court emphasized that, subject to Fifteenth Amendment, "the qualification of voters is a matter committed exclusively to the States."

35 Hearst v. Black, 87 F. 2d 68 (D.C. Cir. 1936); cf. Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 307, 68 L. Ed. 696, 701 (1924).

certainly apply to protect the conduct of a state's business by its officials. While we concede that the Fourth Amendment is not designed to protect a state, surely under our federal system, and in view of the Tenth Amendment to the United States Constitution, the several states are protected from unreasonable and burdensome searches into their papers, records, and confidential memoranda to the same extent as private corporations created under their authority. Second, the individual respondents are entitled to protection against vague, unrestricted and broad questioning concerning the way in which they perform their duties with relation to the qualification of voters. They may well have acted in good faith with respect thereto, believing they fairly applied state law without violating the federal constitution or any criminal statutes enacted pursuant thereto." Nevertheless, they may find their testimony before the Commission furnished to the United States Attorney General for action under the criminal statutes of the United States. In view of such possibility, they are entitled to know the precise line of inquiry so as to have some standard by which to judge whether the questions posed to them are related to any matters within the congressional directive to the Commission. The problem involved has been well stated in Watkins v. United States, 354 U.S. 178, 208, 1 L. Ed. 2d‍ 1273, 1296 (1957):

"The problem attains proportion when viewed from the standpoint of the witness who appears before a congressional committee. He must decide at the time the questions are propounded whether or not to answer. As the Court said in Sinclair v. United States, 279 U.S. 263, 73 L. ed. 692, 49 S. Ct. 268, the witness acts at his peril. He is *** bound rightly to construe the statute.' Id. 279 U.S. at 299. An erroneous determination on his part, even if made in the utmost good faith, does not exculpate him if the court should later rule that the questions were pertinent to the question under inquiry.

"It is obvious that a person compelled to make this choice is entitled to have knowledge of the subject to which the interrogation is deemed pertinent. That knowledge must be available with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense. The 'vice of vagueness' must be avoided here as in all other crimes."

The proceeding in the case at bar could not culminate in a criminal prosecution for contempt of Congress. Nevertheless, if the respondents were held in civil contempt and imprisoned for failure to obey the broad directive of the court or to answer questions outside the proper scope of the Commission's inquiry, they would be deprived of liberty without due process of law, just as in the Watkins case. The rationale of the Watkins case is that it is a denial of due process to place a witness in the intolerable position of having to speculate at what point he becomes entitled to refuse to answer questions of a sweeping nature relating to a vague area of inquiry.

The respondents herein have both personal rights and rights as judicial officers of Alabama. The subpoenas directed to them are broad and unrestricted. The court's order is equally broad. The questions which were propounded by the Commission at its hearing show that the Commission, without informing the witnesses of any specific complaints, intends to inquire into motives, reasons, bases of judicial decision, and the mental processes by which the respondent registrars passed upon applications for registration as voters. The application of the United States Attorney General and the supporting affidavit of Gordon Tiffany as Staff Director show an intention to pursue an inquiry much broader than any reasonable interpretation of § 104 (a) (2) would permit.

It is submitted on the authority of the Watkins case, that to require respondents to submit to questioning in a vaguely defined area, at the risk of being held in contempt for refusal, is a denial of the due process guaranteed by the Fifth Amendment.

VI. A WITNESS CANNOT BE COMPELLED TO APPEAR AND TESTIFY AT A HEARING AT WHICH HE WILL BE SUBJECTED TO TELEVISION AND NEWSREEL CAMERAS, NEWS PHOTOGRAPHERS, LARGE CROWDS, AND THE LIKE

The proceeding at which respondents were summoned to appear and testify was more in the character of a Roman circus than of a bona fide fact finding hearing. The room in which the Commission sat was crowded with television and newsreel cameras, news photographers, and a mob of spectators. Under

30 18 U.S.C. § 242.

such facts the case of United States v. Kleinman, 107 F. Supp. 407 (D.D.C. 1952) is directly in point. In that case the defendants were indicted for refusing to testify before a Senate Committee. Their only ground for such refusal was their "constitutional rights' would be violated if compelled to testify while being televised, with newsreel cameras and other ‘apparatus' in operation." The trial was before the court without a jury, and it was held that the refusal to testify was justified. The court said:

"In the cases now to be decided, the stipulation of facts discloses that there were, in close proximity to the witness, television cameras, newsreel cameras, news photographers with their concomitant flashbulbs, radio microphones, a large and crowded hearing room with spectators standing along the walls, etc. The obdurate stand taken by these two defendants must be viewed in the context of all of these conditions. The concentration of all of these elements seems to me necessarily so to disturb and distract any witness to the point that he might say today something that next week he will realize was erroneous. And the mistake could get him in trouble all over again." "

It is true that the rules of the Commission provide that a witness may object to being subjected to such indignities, but such objection itself must apparently be made in the presence of the cameras. Furthermore, we call to the court's attention that at the hearing to which respondents were summoned, although there was room for cameras, newsmen, spectators, and a counsel table for the Commission, no provision at all was made for counsel for the witnesses. Counsel for the witnesses simply had to take their place among the spectators.

VII. EVEN IF THIS COURT HAS JURISDICTION TO COMPEL STATE OFFICIALS TO TESTIFY AND TO DELIVER STATE RECORDS, THE JURISDICTION SHOULD NOT BE EXERCISED The authority granted to the District Courts by Section 105 (g) of the Act is not mandatory. District courts have broad judicial discretion in this as in proceedings for the enforcement of administrative subpoenas, to refuse issuance or to modify the terms of the order.

The general rule is stated in 8 Cyclopedia of Federal Procedure, § 26.19 as follows:

"In such proceedings, the court possesses a reasonable discretion, in the exercise of which it may order that copies be furnished, or that examination or inspection be permitted, without requiring that documents or records in question be removed from the place where they are ordinarily kept."

In N.L.R.B. v. Cudahy Packing Co., 34 F. Supp. 53 (D. Kan. 1940), aff'd, 117 F. 2d 692 (10th Cir. 1941), the Court declined to order the company to produce for the Board in Kansas City, Missouri, its payroll and employment records kept at its Kansas City, Kansas plant, but limited the order to a direction that representatives of the Board, together with a representative of the Company, be permitted to check the files and records at the offices of the Company. The Court said:

"The act says the court shall have jurisdiction to issue an order requiring obedience to the Board's subpoena. It does not say obedience shall be ordered as of course. Certainly the act contemplates that the court will exercise a reasonable discretion. Certainly also, the court has inherent power and authority over its own process to prevent abuse thereof, oppression and injustice." Id. at 61.

In Application of Walling, 47 F. Supp. 255 (E.D. N.Y. 1942), an application for a subpoena duces tecum to produce books and records was refused, the court instead issuing an order permitting inspection at the respondent's regular place of business during the hours of 2 to 5 p.m. on four days of the week.

The court stated that "the petitioner was assumed to be more interested in obtaining information than in promoting a legal controversy," and

"It was suggested, and with reason as I believe, that if the petitioner could acquire the desired information without the interference with the conduct of the respondent's business that would be entailed by the production of an impressive array of its records at a comparatively distant office, the ends of justice to both the petitioner and the respondent would be served. In other words, that the power of subpoena was not arbitrarily to be enforced, if it had been needlessly invoked." Id. at 256.

37 107 F. Supp. at 408.

In Goodyear Tire & Rubber Co. v. N.L.R.B., 122 F. 2d. 450 (6th Cir. 1941) the court reversed a sweeping order of the District Court enforcing a wholesale subpoena of the N.L.R.B. for the production of employment records, saying:

"We differ with the District Court in its view that the only question presented by the Board's application is whether the subpoenas were regularly issued and duly served in accordance with the Board's statutory power, and that there has been a refusal to obey. The statute does not require the District Court to issue the order, but simply gives it jurisdiction to issue. The enforcement of the subpoena is thus confided to the discretion of the District Court, which is to be judicially exercised. We think that the review in this case extends no further than the determination as to whether or not there was an abuse of its discretion. Applying this rule, we think that it was open to the company to contend that the documents called for do not relate to the particular matter in question; that this contention made in the answer raises an issue of fact for determination by the court, and if determined in its favor, that the application of the Board as to documents found not so to relate should be dismissed upon the merits. Interstate Commerce Commission v. Brimson, supra, 154 U.S. at page 490, 14 S. Ct. 1125, 38 L. Ed. 1047." Id. at 453.

In Gretsky v. Basso, 136 F. Supp. 640 (D. Mass. 1955) the court limited an order on application of the Bureau of Internal Revenue Service for a subpoena duces tecum, to a right to inspect records on the premises.

In U.S. v. Brody, 144 F. Supp. 749 (D. Mass., 1956), affd., 243 F 2d 378 (1st Cir.), cert. den., 354 U.S. 923, 1 L. Ed. 2d 1438 (1957), the court commented on its authority with respect to an order requested by the Secretary of the Treasury as follows:

"The powers given to the district court are expressed in broad terms. Under § 7604 (b) the judge *** shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempts, to enforce obedience to the requirements of the summons ***. Can it be doubted that under this clause the court has power to issue an order, following a refusal to obey a summons issued by a delegate, recasting the witness' obligation in less onerous terms?" Id. at 751.

The application of the Attorney General to this court invokes the discretionary equity powers of the court. The order requiring the attendance of respondents and the delivery of state records is in the nature of a mandatory injunction, and even if the court has the power to issue such order, the question of whether or not to do so is within the sound discretion of the court.

In the consideration of its responsibility in this case, the court will bear in mind these extraordinary facts:

The Commission's subpoena, and the order requested of this court, would remove from the bench and from his jurisdiction the sole Judge of a judicial circuit of the state, and detain him at the uncontrolled will of the Commission or even a fractional minority or "subcommittee”, without consideration or regard for the effect in depriving the public of the circuit of recourse to customary judicial remedy and procedure.

The order would likewise require the removal from their official jurisdictions and functions of respondent registrars, also judicial officers of the state.

The order would require removal and delivery to the Commission of official records of the State, in violation of the law requiring the records to be retained at all times at their official place of custody.

The order would require the removal and delivery in violation of state law, of multitudinous official records not relevant to any specific complaint or legitimate inquiry, and far in excess of the capacity of the Commission to examine or process within the time allotted for the hearing, or any reasonable time.

To the extent that the proposed order would require the testimony of witnesses before a minority of the Commission, it would deprive the witnesses of the minimal protection of the judgment of the Commission, of which a quorum is four members, with respect to whether proposed testimony might be defamatory or incriminating or should be impounded.

The requirement of appearance by these respondents at Montgomery, subjected to television broadcasts and like flamboyant publicity contrived and staged by the Commission or its professional publicity agents as in the case of the so-called "hearing" on December 8, 1958, would constitute an abuse of process and a violation of due process of law.