Larche v. Hannah

177 F. Supp. 816, 1959 U.S. Dist. LEXIS 2728

Opinions

HUNTER, District Judge.

This case originated in the Shreveport Division of the Western District of Louisiana upon the filing of a complaint on July 10, 1959'. Plaintiffs are registrars of voters in and for certain parishes in Louisiana¹. The Commission on Civil Rights is a temporary agency of the United States, created by the Civil Rights Act of 1957, under Public Law 85-315, 85th Congress, 42 U.S.C.A. § 1975 et seq. The Commission scheduled a hearing for July 13, 1959, in Shreveport, Louisiana for the purpose of investigating allegations in writing (under oath or affirmation) that certain citizens were being deprived of their right to vote on account of race or color². These allegations accuse the registrars, through their official acts, of having caused such deprivation, and summoned them to appear before the Commission. The subpoenas also required the registrars to produce for inspection various voting and registration records within their custody and control.

The suit is against the Commission and its members. Its declared object is to stay the effectiveness of the Commission subpoenas and subpoenas duces tecum, and to restrain and enjoin the conduct of the proposed hearing. The registrars insist they are entitled to this relief because the Commission is seeking to hold such hearing pursuant to rules of procedure which are ultra vires, and which deny to them traditional procedural safeguards. Moreover, the registrars assert that the rules of procedure adopted by the Commission violate their fundamental constitutional rights; and that the Act in its entirety is unconstitutional because it constitutes an unconstitutional delegation of power³

Detailing their complaints, supported by sworn affidavits, the registrars allege that they were served with subpoenas and subpoenas duces tecum issued by the Chairman of the Commission, commanding them to appear and testify before the Commission on July 13, 1959; that they have not been informed of the nature of the complaints against them, nor have they been assured that they will be confronted with the complaining witnesses; that the Commission repeatedly has informed the Attorney General of Louisiana that it would not, under any circumstances, furnish plaintiffs with, or permit them to examine, the written complaints filed against them, nor would it divulge the name or names of the secret complainants; that the rules under which the hearing is to be conducted specifically deny to registrars the right to cross-examine their accusers 4.

On July 10, 1959 the case was heard by the Honorable Ben C. Dawkins, Jr., Chief Judge of the Western District of Louisiana. 176 F.Supp. 791. The matter was extensively argued and briefed. On July 12th Judge Dawkins granted a temporary restraining order and issued a rule on the Commission and its members to show cause why an interlocutory injunction should not issue. Judge Dawkins, in issuing the temporary restraining order, did not intimate any opinion as to the constitutionality of the statute itself ⁵. This three-judge court was convened to consider the constitutional attack.

The principal object and purpose of a three-judge federal court is to decide the constitutional validity of the Act of Congress sought to be enjoined. But where other issues are presented, as they are here, they too should be decided. The parties readily agree that this is so and that all issues, both constitutional and non-constitutional, are before this' court⁶.

The Constitutionality of the Act Itself

Complainants seek a declaratory judgment to the effect that the Act is unconstitutional because it is not appropriate legislation. Manifestly, this position cannot be sustained.

The Constitution and pertinent decisions of the Supreme Court make clear that Congress may, pursuant to power conferred upon it by Article 1 of the Constitution, legislate to secure the right to vote in federal elections. That power has been found in Article 1, Section 4. Ex parte Siebold, 1879, 100 U. S. 371, 383, 25 L.Ed. 717; Ex parte Yarbrough, 1884, 110 U.S. 651, 660, 4 S.Ct. 152, 28 L.Ed. 274; United States v. Mosley, 1915, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355. It has been found in Article 1, Section 8, Clause 18, Ex parte Yarbrough, supra, 110 U.S. at page 658, 4 S.Ct. at page 155. It has been found in Article 1, Section 2, United States v. Classic, 1941, 313 U.S. 299, 316, 61 S.Ct. 1031, 85 L.Ed. 1368. And, as the Supreme Court noted in the Classic case, supra, 313 TJ.S. at page 315, 61 S.Ct. at page 1038:

“ * * * since the constitutional command is without restriction or limitation, the right unlike those guaranteed by the Fourteenth and Fifteenth Amendments, is secured against the action of individuals as well as of states.”

It is equally clear that Congress may, pursuant to Section 2 of the 15th Amendment, legislate to prevent states and their officials from denying qualified persons the right to vote on account of race, color, or previous condition of servitude (Guinn v. United States, 1915, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340; In re Wallace, D.C. 1959, 170 F. Supp. 63). Similarly, Congress may, pursuant to Section 5 of the 14th Amendment, legislate to prevent states and their officials from enacting or enforcing statutes which deny equal protection of the laws.

Since Congress may legislate pursuant to its constitutional powers, and since it may investigate those objects upon which it may legislate ⁷, and since it may delegate its investigative function⁸, the issue of the constitutionality of the acts in creating the Commission rests solely on the question of whether the action of Congress was, in fact, an implementation of its constitutional powers. The stated purposes of the act, its fair reading, and its overwhelming legislative history are proof positive that Congress did create the Commission pursuant to its Article 1 power, as well as to its powers under Sections 5 and 2 of the 14th and 15th Amendments⁹, respectively.

We are mindful of the arguments repeatedly appearing in the registrars’ brief to the effect that the power granted to Congress to legislate is specifically limited by the Tenth Amendment. On its face the Tenth Amendment recognizes that certain powers are prohibited by the Constitution to the states, and therefore are not reserved to the states. One of these prohibitions is that no state may deny equal protection of its laws (14th Amendment). Another is that no state may deny the right to vote on account of race, color, or previous condition of servitude (15th Amendment). Still another provision of the Constitution specifically gives to Congress the power to legislate to secure the right of qualified electors to vote in federal elections (Article 1,' Sec. 2). So, we have here involved the very powers which the Constitution says are not reserved to the states. The action here is not an invasion of state power merely because state voting and registration records are involved. The congressional power is complete in itself and may be exercised to its full extent. The investigation of alleged discriminatory practices is an appropriate step in the process of enforcing and protecting the right of qualified electors ¹⁰ to vote. The Act very definitely constitutes appropriate legislation.

The Rules of the Commission

The remaining pertinent and serious questions presented may be thus stated:

(1) Did Congress, in' creating the Commission, specifically authorize it to adopt rules for investigations conducted under Section 104(a) (1) of the Act which would deprive parties investigated of their rights of confrontation and cross-examination and their right to be apprised of the charges against them? ¹¹

(2) If Congress did so authorize the Commission is such authorization constitutionally permissible ?

A careful reading of the several opinions in Groban12, Anonymous¹³, and Greene¹⁴ convinces us that, as applied to the circumstances of this case, a serious constitutional issue is presented as to whether or not the rules adopted by this Commission, which deprived these plaintiffs of the right of confrontation and cross-examination and the right to be apprised of the complaints against them, are violative of the Constitution. There is no talismanic formula which can be applied. Every term, the Supreme Court examines the particular circumstances of particular cases in order to apply generalities which no one disputes.

Under the rationale of Greene, concurred in by eight justices, a decision is not now required on the constitutionality of these deprivations. It is sufficient that we find nothing in the Act which expressly authorizes or permits the Commission’s refusal to inform persons, under investigation for criminal conduct, of the nature, cause and source of the accusations against them, and there is nothing in the Act authorizing the Commission to deprive these persons of the right of confrontation and cross-examination.

Here, plaintiffs are being subjected to public opprobrium and scorn without fair and adequate opportunity to disprove the accusations against them. They are being subjected to the distinct likelihood of losing their jobs. They have been charged with, and are under investigation for, criminal conduct, and are to be examined in connection with offenses constituting federal and state crimes¹⁵ in a hearing which would completely fail to comport with traditional American ideas of fair play and would violate every element of natural justice.

The hearing sought to be restrained herein has been called pursuant to, and would be conducted in accordance with, rules which deny the right of confrontation. The registrars would be denied the right of cross-examination. They would be denied the right to be apprised of the identity of the person, or persons, making the charges against them, as well as the exact nature of the charge. These denials are the products of administrative decision not explicitly authorized by Congress. When we consider that this executive commission has been granted the right of subpoena to investigate allegations which, if true, would constitute the commission of crimes under state and federal law, and that it is further required to make a report of its findings to the Chief Executive whose duty it is to enforce federal criminal laws¹⁶, we can reach no other conclusion than to say that if ever the traditional procedural safeguards, spoken of in Greene, were required to protect appearers before a commission, then this is the instance. There, the Supreme Court, speaking through its Chief Justice, said [360 U.S. 474, 79 S.Ct. 1413]:

“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right ‘to be confronted with the witnesses against him.’ This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, e. g., Mattox v. United States, 156 U.S. 237, 242-244, 15 S.Ct. 337, 339-340, 39 L.Ed. 409; Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890; Motes v. United States, 178 U.S. 458, 474, 20 S.Ct. 993, 999, 44 L.Ed. 1150; In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682, but also in all types of cases where administrative and regulatory action were under scrutiny. E. g., Southern R. Co. v. Commonwealth of Virginia, 290 U.S. 190, 54 S.Ct. 148, 78 L.Ed. 260; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U. S. 292, 57 S.Ct. 724, 81 L.Ed. 1093; Morgan v. United States, 304 U.S. 1, 19, 58 S.Ct. 773, 776, 999, 82 L.Ed. 1129; Carter v. Kubler, 320 U.S. 243, 64 S.Ct. 1, 88 L.Ed. 26; Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63. Nor, as it bas been pointed out, has Congress ignored these fundamental requirements in enacting regulatory legislation. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168-169, 71 S.Ct. 624, 646-647, 95 L. Ed. 817. (Italics ours.)

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“Where administrative action has raised serious constitutional problems, the Court has assumed that Congress or the President intended to afford those affected by the action the traditional safeguards of due process. See, e. g., The Japanese Immigrant Case [Kaoru Yamataya v. Fisher] 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721; Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 80 L.Ed. 561; Ex parte Endo, 323 U.S. 283, 299-300, 65 S.Ct. 208, 217, 89 L.Ed. 243; American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 107-108, 67 S.Ct. 133, 143, 91 L.Ed. 103; Hannegan v. Esquire, 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586; Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 94 L.Ed. 616; Cf. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. These cases reflect the Court’s concern that traditional forms of fair procedure not be restricted by implication and without the most explicit action by the Nation’s lawmakers, even in areas where it is possible that the Constitution presents no inhibition.”

And Mr. Justice Douglas, concurring in Peters v. Hobby, 349 U.S. 331, 75 S. Ct. 790, 800, 99 L.Ed. 1129, says:

“It, therefore, becomes necessary for me to reach the constitutional issue.

“Dr. Peters was condemned by faceless informers, some of whom were not known even to the Board that condemned him. Some of these informers were not even under oath. None of them had to submit to cross-examination. None had to face Dr. Peters. So far as we or the Board know, they may be psychopaths or venal people, like Titus Oates, who revel in being informers. They may bear old grudges. Under Corss-examination their stories might disappear like bubbles. Their whispered confidences might turn out to be yarns conceived by twisted minds, or by people who, though sincere, have poor facilities of observation and memory.

“Confrontation and cross-examination under oath are essential, if the American ideal of due process is to remain a vital force in our public life. We deal here with the reputation of men and their right to work —things more precious than property itself. We have here a system where government with all its power and authority condemns a man to a suspect class and the outer darkness, without the rudiments of a fair trial. The practice of using faceless informers has apparently spread through a vast domain. It is used not only to get rid of employees in the Government, but also employees who work for private firms having contracts with the Government. * * *.”

The Supreme Court, in Greene, clearly and concisely charted a salutary and sensible course to be followed. Whether the procedures under the circumstances here are constitutionally permissible we do not decide. In accordance with the teachings of Greene, we decide only that in a hearing such as the one envisaged here, the Commission had no right to deny the accused Registrars the traditional rights of confrontati on and cross-examination in the absence of explicit congressional authorization to do so.

In Greene the Supreme Court held these safeguards were not to be denied to one being investigated for alleged communistic associations and sympathies in the absence of explicit authorization from either the President or Congress. Surely, duly chosen state officials are entitled to the same protection, especially since no considerations of national security are involved. So is every citizen. In Greene, the government did not take the petitioner’s job away from him, but he did lose his job as a result of a government finding to the effect that he was not a good security risk. If the Commission here finds the charges against the registrars are true, they are faced not only with public scorn and possible loss of their jobs, but also with probable indictment, arrest and prosecution.

We are impressed, but not persuaded, by the government’s argument that the legislative history of the Act proves that the Commission acted at the implied direction of Congress in adopting the rules here under attack. This argument of implied direction cannot be sustained in the face of the following language from Greene:

“The issue, as we see it, is whether the Department of Defense has been authorized to create an industrial security clearance program under which affected persons may lose their jobs and may be restrained in following their chosen professions on the basis of fact determinations concerning their fitness for clearance made in proceedings in which they are denied the traditional procedural safeguards of confrontation and cross-examination.”

“If acquiescence or implied ratification were enough to show delegation of authority to take actions within the area of questionable constitutionality, we might agree with respondents that delegation has been shown here. * * * Before we are asked to judge whether, in the context of security clearance cases, a person may be deprived of the right to follow his chosen professions without full hearings where accusers may be confronted, it must be made clear that the President or Congress, within their constitutional powers specifically has decided that the imposed procedures are necessary and warranted and have authorized their use. * * * Such decisions cannot be assumed by acquiescence or non-action. * * * They must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized. * * * but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.

“Where administrative action has raised serious constitutional problems, the Court has assumed that Congress or the President intended to afford those affected by the action the traditional safeguards of due process. See, e. g., The Japanese Immigrant Case [Kaoru Yamataya v. Fisher] 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721; Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 80 L.Ed. 561; Ex parte Endo, 323 U.S. 283, 299-300, 65 S.Ct. 208, 217, 89 L.Ed. 243; American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 107-108, 67 S.Ct. 133, 143, 91 L.Ed. 103; Hannegan v. Esquire, 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586; Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 453, 94 L.Ed. 616; C. F. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. These eases reflect the Court’s concern that traditional forms of fair procedure not be restricted by implication or without the most explicit action by the Nation’s lawmakers, even in areas where it is possible that the Constitution presents no inhibition.”

Moreover, even if we were to ignore Greene, which we have no right to do and certainly will not do, we would still reject the government’s argument of implication. The rejection by Congress of more extensive rules is neither explicit nor implied authority to eliminate the fundamental safeguards under the circumstances here present. It is true that Congress refused to explicitly provide the safeguards, but it is equally true that there is nothing in the history of this legislation to show that Congress even considered writing into the Act any power of the Commission to do away with apprisal, confrontation, and cross-examination. The silence of Congress was apparently the product of thoughtful compromise. Some members of Congress positively wanted the fundamental safeguards spelled out, while others probably would have approved legislation specifically denying the accused these rights. Congress remained silent.

In Greene the Court specially found that the Defense Department had been authorized to fashion and apply an industrial clearance program but that the Department had not shown that either Congress or the President had explicitly authorized proceedings in which the ac~ cused was not afforded the safeguards of confrontation and cross-examination. In Greene the President, in general terms, had authorized the Department of Defense to create procedures to restrict the dissemination of classified information, and had apparently acquiesced in the elaborate program established by the Secretary of Defense which denied investigated parties of the rights of confrontation and cross-examination. The case for authorization there was stronger than here; e. g., in Greene, Part IY, § 2 of Executive Order 9835, 5 U.S.C.A. § 631 note, specifically stated:

“ * * * the investigative agency may refuse to disclose the names of confidential informants, provided it furnishes sufficient information about such informants on the basis of which the requesting department or agency can make an adequate evaluation of the information furnished by them, and provided it advises the requesting department or agency in writing that it is essential to the protection of the informants or to the investigation of other cases that the identity of the informants not be revealed * * * ”

Justice Clark, dissenting, thought the authorization was specific:

“How the Court can say, despite these facts, that the President had not sufficiently authorized the program is beyond me, unless the Court means that it is necessary for the President to write out the Industrial Security Manual in his own hand.”

The Supreme Court, by an 8-1 majority, rejected the authorization as being insufficient.¹⁷ We are not free to do otherwise here.

The conclusion is inevitable here that the burden is upon the government to show the “explicit action” by Congress authorizing the adoption of the rules which refuse to permit cross-examination, confrontation, and apprisal. In this case the government has made no attempt to point to any “explicit action” of authorization. Congress has made no such authorization, and absent such an explicit authorization, the rules in these particulars are clearly ultra vires.

The Equities

Proper voting practices are the cornerstone upon which our democratic balance is maintained. Discrimination upsets that balance. Moreover, discrimination clearly violates the Constitution. Steps designed to determine whether there has been discrimination are therefore of grave public interest and importance. When there are charges, as there are here, which state that by one means or another the vote is being denied to a qualified person, the public interest will be served by learning all the facts. Certainly, the surest way of finding out all the facts is to hear from everybody, and the surest test of a witness’ veracity is his confrontation and cross-examination.

Government counsel seem to say in their briefs that their investigation is so very important that this Court should not hold that the traditional safeguards should be afforded the registrars. We in no way disagree with counsel for the government concerning the value they place on the precious right to vote. But search as we have, we find nothing inimical to the government’s interest in giving to the registrars the rights they insist upon here. The ultimate goal of Congress in creating the Commission was to find out all of the facts — the truth, not just possibly prejudiced opinion — so as to be able to safeguard the free exercise of the voting right, subject to the legitimate power of the state to prescribe non-discriminatory and fair voting qualifications. Often in cases of this nature the Court must balance between individual and governmental interests. Here, we examine the record for that purpose and find no conflict. No better procedure exists for finding out the truth than to give the accused notice of the case against him and full opportunity to meet it. Hearings so conducted generate a feeling, so vital in a popular government, that justice is being done.

We have dealt at length with the immediate and irreparable damage that would be caused the registrars by forcing them to proceed without giving them their basic and traditional rights. No good purpose would be served by reviewing that phase of the case. Suffice it to say that we stand on what we have said and we agree with Judge Dawkins’ original opinion — that these registrars are faced with immediate and irreparable injury. What damage, what injury, will the Commission suffer by giving to these registrars their traditional safeguards of due process of law, and by affording them the tenets of natural justice? In our humble opinion, all the Commission will suffer is perhaps a little inconvenience. It may take them three days rather than one to get the facts. How best can they perform the major task of “finding out all the facts” than to give the persons investigated the basic legal safeguards. We have searched in vain throughout the extensive briefs filed by the government in an effort to find out what irreparable damage, or what damage at all, could be done the Commission by prohibiting them from holding a hearing pursuant to these “ultra vires” rules and resolutions.

We do find in various parts of the government’s briefs several statements or intimations as to damage. It was suggested that irreparable damage will be suffered because the Commission will expire in November. The recent action of Congress in extending the life of the Commission dispels this argument.

The government also suggests that if copies of the accusations and the names of the accusers were furnished the registrars it might result in the accusers being prosecuted for perjury. That is a strange argument — if one person makes a written allegation under oath that another has committed a crime and this oath turns out to be untrue, the public interest does not require that the government protect the perjurer. The government also argues that the Court should take judicial notice of the possible pressure to which persons making complaints in this field are subject under present circumstances. This Court does not know of a single instance where any such pressure has actually been brought. Some honest, sincere, and well-meaning people really believe this, but we are not going to assume (in the total absence of evidence) that the people of this State will be guilty of such a practice. Finally, the government argues that there is no point in telling these people what they did because they are the registrars and they know what they did. This contention assumes the registrars’ guilt, an assumption which itself does violence to the American concept of justice — that all persons accused of crime are presumed to be innocent until proven guilty by competent evidence.

Insofar as the right to cross-examination is concerned, the government offers no reason why this should be denied. They merely say that they do not have to give it because congressional committees do not, and that Congress did not intend them to do it.

The Commission has authority to hold public hearings on vital public issues. Knowledge and understanding of every element of the problem will give greater clarity and perspective to one of the most difficult questions facing our country. Such a study, such an investigation, fairly conducted, will tend to unite responsible people in a common effort to solve these problems. Investigation and hearings will bring into proper focus the areas of responsibility of the federal government and of the states under our constitutional system. Through greater public understanding, therefore, the Commission may chart a course of progress to guide us in the years ahead, but a fact finding investigation conducted as this one is proposed to be conducted can result only in misunderstanding, suspicion, hostility, and unneeded bitterness.

Natural justice would not require confrontation, apprisal, and cross-examination in every hearing of the Commission, but only in instances where, as here, the record makes it abundantly clear that those being investigated are accused and suspected of criminal conduct.

Believing as we do that the procedures and the rules of the Commission in the particulars heretofore discussed are ultra vires and threaten the registrars with immediate and irreparable damage, and believing further that the interests of the government, the public, and the Commission will best be served by the holding of a full and fair hearing wherein all accused of crimes-are given a fair chance to develop all the facts, we have but one course to take —that is to dismiss the government’s motion for summary judgment and grant the prayer for an injunction, in accordance with this opinion.

1 . Hereinafter referred to as “Registrars”.

2 . Under Section 104(a) of that Act the Commission is empowered and directed to:

“(1) investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin; which writing, under oath or affirnation, shall set forth the facts upon which such belief or beliefs are based; * * * ”

The Act' also empowers the Commission, or any authorized subcommittee thereof, to hold such public hearings and act at such times and places as the Commission may deem advisable. Said Act also empowers the Commission to require the attendance and testimony of witnesses or the production of written or other matters.

3 . Registrars also contend that the procedural provisions of the Administrative Procedure Act should be applied. We cannot agree. The A.P.A. prescribes in section 7 (5 U.S.C.A. § 1006) specific hearing procedures with respect to two processes; in section 4 (5 U.S.C.A. § 1003) with respect to “rule making”, and in section 5 (5 U.S.C.A. § 1004) with respect to “adjudications.” The Act contains no hearing requirements except where rule making or adjudications are involved. The Civil Rights Commission is performing neither function here.

4 . The truth of these facts is not contested.

5 . Judge Dawkins’ opinion is made a part hereof by reference.

6 . California Water Service Co. v. City of Redding, 1938, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323; Davis v. Wallace, 1922, 257 U.S. 478, 482, 42 S.Ct. 164, 66 L.Ed. 325; Louisville & Nashville R. Co. v. Garrett, 1913, 231 U.S. 298, 304, 34 S.Ct. 48, 58 L.Ed. 229.

7 . Watkins v. United States, 1957, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273.

8 . Endicott Johnson Corp. v. Perkins, 1943, 317 U.S. 501-510, 63 S.Ct. 339, 87 L.Ed. 424.

9 . (A). From the report of the House of Representatives Judiciary Committee (Report No. 291, 85th Congress, First Session, U.S.Code Congressional and Administrative News 1957, p. 1966) accompanying the bill which became, in pertinent part, the Civil Rights Act of 1957, it is manifest that Congress was legislating pursuant to its Article 1 power. Thus, that portion of the report designated “General Statement” notes:

“The provisions of the bill I-I.R. 6127 are designed to achieve a more effective enforcement of the rights already guaranteed by the Constitution and laws of the United States. This is particularly true with regard to the right of franchise in Federal matters.” (At page 5.)

Similarly, the “General Statement” portion continues at page 6:

“With regard to the proposals involving the right to vote, the Federal Government has placed upon it by article 1, section 4, of the Constitution the authority to regulate the manner of conducting elections and that authority is further suppemented by the 14th and 15th amendments.”

There is further evidence that throughout its deliberations Congress was conscious of its Article 1 power. A clear exorcise of that power is illustrated by the enactment of the present subsection (b) of section 1971, Title 42. In authorizing the federal government to prevent certain types of conduct by individuals, its terms are carefully limited to federal elections. And, as the House Report, supra, makes clear (at pages Ills), Congress rooted this provision in its Article 1 power.

Finally, the history of the terms of the Act which prescribe the duties of the Commission reveals that it was created pursuant to the Article 1 power. Section 104(a) directs that the Committee shall:

“(1) investigate allegations in writing under oath or affiz'mation that certain citizens of the United States are being deprived of their right to vote and have that vote counted * * * ” (Emphasis supplied.)

The italicized language was inserted by the House after the bill came out of Committee, Representative Hoffman, favoring the amendment, regarded its inclusion as crucial since Supreme Court had held it to be an integral part of the right to vote in United States v. Classic, supra (103 Cong.Rec.App. 4716). Thus, the Commission was directed to investigate deprivations of an aspect of the right to vote which had been enunciated in a case which involved the Article 1 power of Congress.

(B). The nth Amendment. In the House debates Congressman Celler referred to the Act (103 Cong.Rec. 16088) as “ * * * clear implementation of the 14th and 15th amendments.” Similarly, in the -words of the House Report, supra, at page 6:

“ * * * the 14th amendment operates to prevent any State from enacting or enforcing a law which would abridge the privilege and immunity of a United States citizen and denying such a person the equal protection of the laws. These two amendments expressly authorize Congress to enforce them by legislation.” (Emphasis supplied.)

“ * * * the 14th and 15th amendments, both of which expressly confer upon the Congress the power to enforce them by appropriate regulations.” (At page 13.)

Above all, the terms of the Act itself which relate to the Commission on Civil Rights demonstrate conclusively that Congress relied in part upon its powers under section 5 of the Fourteenth Amendment. By section 104(a) the Commission is directed to:

“(2) study and collect information concerning legal developments constituting a denial of equal protection of the latos under the Constitution; and (emphasis supplied)

“(3) appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution.” (Emphasis supplied.) The inclusion by Congress of the italicized language manifests its reliance upon a concept found only in the 14th Amendment.

(C) The 15th Amendment. For example, the statement of Senator Bush at 103 Congressional Record, 13138: “That is the central purpose of this bill: to give meaning to the 15th amendment of the Constitution of the United States.” See also the statement of Representative Celler in the House debates at 103 Congressional Record 16088.

10 . Under our constitutional system the qualification of voters is a matter committed to the states, subject to federal constitutional restraints prohibiting discrimination on account of race, color, sex, etc. But it is also true that the right of citizens to east ballots, and have them counted in congressional elections, in accordance with applicable state laws, is a right secured by the federal constitution, and this right, unlike those carried by the 14th and 15th amendments, is secured against the actions of individuals as well as states. Article 1, Section 2 of the Constitution, in its provisions for the election of members of the House of Representatives, and the Seventeenth Amendment, in its provision for the election of Senators, provide that officials will be chosen “by the people”. Each provision goes on to state that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.” So, while the right of suffrage in federal elections is established in the Constitution, it is subject to the imposition of state standards which are not discriminatory (Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072, decided June 8, 1959.

11 . Congress authorized the Commission to hold hearings (42 U.S.C.A. § 1975d (f)). Congress enumerated specific mandates with respect to certain less fundamental procedural aspects (42 U.S.C.A. § 1975a). Congress did not expressly authorize the Commission to deny to parties investigated the right of apprisal, confrontation, and cross-examination. The Commission assumed that they had the power to so do.

On their own, they adopted a rule denying to the parties investigated the right of cross-examination. The rule is 3(i) and reads as follows:

“Interrogation of witnesses at hearings shall be conducted only by members of the Commission or by authorized staff personnel.”

When informed that a hearing would be held to investigate charges against them, the registrars requested the right to see the accusations and affidavits filed against them. They also specifically requested the names of their accusers. The Commission refused both requests. The denial in each instance was by resolution (see Stipulation).

12 . In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, decided February 25, 1957.

13 . Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234, June 15, 1959.

14 . Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, decided June 29, 1959.

15 . The Commission admittedly plans to hold the hearing to investigate written allegations that the registrars deprived certain citizens of their right to vote because of their color, race, religion, or national origin (see Affidavits of Registrars and Stipulation No. 5). Acccordingly, it must be admitted that the registrars are being examined in connection with their alleged commission of federal and state crimes, as follows, to wit:

18 U.8.O.A. § 27,2

"Deprivation of rights under color of law

“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the’ Constitution or laws of the United States, or to different punishments, pains, or penalties, on account 'of such inhabitant being an alien, or by reason of his color,. or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”

LSA-R.S. 14 :lSJf “Malfeasance in office

“Malfeasance in office is committed when any public officer or public employee shall:

“(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or

“(2) Intentionally perform any such duty in an unlawful manner; or

“(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.

“Whoever commits the crime of malfeasance in office shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.”

16 . 42 TJ.S.C.A. § 1975c(b) requires the Commission to submit to the President a final and comprehensive report of its findings. Since the Commission is required to make this report to the President, the Chief Executive Officer of the land, it is fair to presume that a prime purpose of this report is to secure execution and enforcement of the laws presently in effect.

17 . Equally as decisive on the issue of explicit authorization in areas of doubtful constitutionality is Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. There, Congress had enacted legislation requiring every passport application to “contain a true recital of each and every matter of fact which may be ■ required by * * * any rules” of the Secretary of State, and that require-meat had to be satisfied “[blefore a passport is issued to any person.” 22 U.S. C.A. § 213. In this context, the Secretary asked for, and petitioners refused to file, the required affidavits stating whether they then were or ever had been members of the Communist party. Thereupon, the Secretary refused to further consider petitioners’ application until such time as they filed the required affidavits. The scholars, the courts, the Chief Executive, and the Attorney General all agreed that the issuance of passports had for years been a “discretionary act” on the part of the State Department. The Supreme Court decided that in order for the Secretary to deny a passport to a Communist whose travel abroad would be inimical to our national security, Congress must so provide in explicit terms. The Court once again had construed very narrowly the delegated power to curtail or dilute substantial and fundamental rights.