centage of Negroes registered in most of these counties is 1, 2, 3, 4, 5 percent, so we are not getting close to the 15 percent.

We first make that determination. We then make an investigation. If the investigation reveals that there is a pattern, that the reason that these Negroes have not been permitted to register is because of their race or anybody else has been turned down in this area because of race or color, then we bring a suit. After the suit is brought, if an individual Negro wants to register, he must go to the local registrar and attempt to register. If he is then turned down and he feels that he has been turned down because of his race, then the Federal judge can hear that case himself or he can appoint a referee to determine the facts.

Now, assume that the referee determines the facts. The referee then decides whether the individual is qualified or not. If he determines that he is qualified and he has to be qualified under State law, the referee applies State law. If he determines that the applicant is qualified, he reports that to the judge.

Senator KEFAUVER. Do the State officials have a right to appear and give their testimony before the referee and the judge?

Attorney General KENNEDY. That is right. The referee can make the determination. When the judge makes the determination, he gathers all the facts he feels are pertinent.

Senator ERVIN. Pardon me for interrupting. I don't believe you answered the Senator. He asked you if the official had the right to appear before the referee. I will ask you as a matter of language if the legislation doesn't say it is an ex parte proceeding and he has not the right.

Attorney General KENNEDY. I think I said that.

Senator KEFAUVER. Then where does the referee

Attorney General KENNEDY. The State official then cannot register the individual Negro. It is not up to the referee to register him. He just develops the facts. Then he presents the facts to the judge. Then the judge makes the determination whether the individual should or should not be registered.

Then there is a contest-if the State or the county officials contest the judge's determination, they contest it in a regular court case. If they lose at the district court level, then they can take an appeal to the circuit court and then to the Supreme Court. The individual, therefore, is not registered. Nobody is registered until after there is a determination by the court, when there is a case between the individual and the local officials or the State officials. Nothing happens, therefore, until that occurs.

Senator KEFAUVER. Thank you.

I appreciate your letting me ask the question.

Senator ERVIN. Mr. Chairman, I would like to have inserted in the record at this point the provisions of title I of this bill, which appear beginning at line 10 on page 5 and extend through line 16 on page 6.

I am going to say that the only interpretation, in my honest judgment, which can be placed upon this provision is that when the Attorney General makes the request and the allegations specified in his complaint, then the right of an applicant to have his application passed on either by the judge or a voting referee appointed by the judge arises without any trial being had, without any proof being

offered, and without any judgment being entered. And the fact that this interpretation is sound appears from the proviso in lines 11, 12, 13, 14, 15, and 16 on page 6, which states:

Provided, That in the event it is determined upon final disposition of the proceeding, including any review, that no pattern or practice of deprivation of any right secured by subsection (a) exists, the order shall thereafter no longer qualify the applicant to vote in any subsequent election.

The only possible interpretation in my judgment that can put on this is that the State election official is denied the power to pass upon the qualifications of the voters and this power is transferred to the court or voting referees appointed by the court upon the mere allegations of the complaint of the Department of Justice. And this proviso shows that the court will try the case after all these things happen. Then if the trial shows that the allegations were not the truth, then the rights of the applicants to vote cease. From my viewpoint, it is absolutely inconsistent with due process of law to deprive State officials of their power without a trial being first had. I will read this from 12 American Jurisprudence, Constitutional Law, section 573, pages 267 and 268:

The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly procedure adapted to the nature of the case before a tribunal having jurisdiction of the cause.

Under this bill, election officials of the State could be deprived of their powers without any notice, without any opportunity to be heard or to defend the case. Then long afterwards, the court would try the case and see what allegations the Attorney General could prove.

The CHAIRMAN. Which lines did you want in the record?

Senator ERVIN. I want everything beginning with line 10 on page 5 and ending with line 16 on page 6.

The CHAIRMAN. It is so ordered.

(The material referred to is as follows:)

(f) Whenever in any proceeding instituted pursuant to subsection (c) the complaint requests a finding of a pattern on practice pursuant to subsection (e), and such complaint, or a motion filed within twenty days after the effective date of this Act in the case of any proceeding which is pending before a district court on such effective date, (1) is signed by the Attorney General (or in his absence the Acting Attorney General), and (2) alleges that in the affected area fewer than 15 per centum of the total number of voting age persons of the same race as the persons alleged in the complaint to have been discriminated against are registered (or otherwise recorded as qualified to vote), any person resident within the affected area who is of the same race as the persons alleged to have been discriminated against shall be entitled, upon his application therefor, to an order declaring him qualified to vote, upon proof that at any election or elections (1) he is qualified under State law to vote, and (2) he has since the filing of the proceeding under subsection (c) been (A) deprived of or denied under color of law the opportunity to register to vote or otherwise to qualify to vote, or (B) found not qualified to vote by any person acting under color of law. Such order shall be effective as to any Federal or State election held within the longest period for which such applicant could have been registered or otherwise qualified under State law at which the applicant's qualifications would under State law entitle him to vote: Provided, That in the event it is determined upon final disposition of the proceeding, including any review, that no pattern or practce of deprivation of any right secured by subsection (a) exists, the order shall thereafter no longer qualify the applicant to vote in any subsequent election.

Senator ERVIN. This reminds me of the couplet:

I oft have heard of Lydford law

How in the morn they hang and draw

And sit in judgment after.

Under this bill, the Department of Justice would deprive the State officials of power by allegation, without any notice, without any hearing, and without any trial.

I am ready to proceed with title 2, which relates to public accommodations.

Senator KEFAUVER. I think the Attorney General ought to have a chance to comment.

Senator KEATING. Would the Senator yield at that point?

Senator ERVIN. Yes; I think the Attorney General should com

ment.

Attorney General KENNEDY. I really think that what I have said as best I can has answered it.

Senator KEATING. Doesn't the Senator view that as a stay, which we are very familiar with in jurisprudence and which againSenator ERVIN. What kind of a stay?

Senator KEATING. That the order is in effect unless it is upset on appeal and final disposition of the proceeding

Senator ERVIN. I don't see any similarity between these provisions of the bill and a stay. A party obtains a stay after the court has tried the case for the purpose of preventing the execution of the judgment pending his appeal. In such cases, due process of law has been observed and a trial has been had and the party obtaining the stay has appealed from the judgment rendered on the trial.

Senator KEATING. No. A stay does not involve a trial. It involves a preliminary determination.

Senator ERVIN. Maybe you are thinking about an injunction. Senator KEATING. A temporary stay.

Senator ERVIN. Temporary injunctions or restraining orders are issued to preserve the status quo and prevent any change in it until a trial can be had on the merits of the case. These provisions of the bill change the status quo entirely without trial and without a hearing.

Do you have any further comments?

Attorney General KENNEDY. I would just say in connection with that: there is not any change until after you have had a hearing. Senator ERVIN. The change is that the power of the State election officials has been vested by the unproved allegations in the judge and the voting referees.

Attorney General KENNEDY. We have been through it, so I did not see any sense in going into it any further.

Senator ERVIN. Let us consider title 2, relating to public accommodations.

Let's see if we can agree on this:

Have you heard any claim made that the public accommodations provisions of this bill can be sustained by any provision of the Constitution other than the 14th amendment or the interstate commerce clause?

Attorney General KENNEDY. Senator, I think the 13th amendment would also have a bearing on it. The 13th, 14th, and the commerce clause.

Senator ERVIN. The 13th amendment prohibits involuntary servitude. Do you honestly think this title can be supported by the 13th amendment?

Attorney General KENNEDY. I would support it on all of these constitutional bases, Senator. I think that slavery means more than just being owned by an individual. Slavery meant many other things. Part of being a slave was to be treated as an inferior. When you cannot stop, cannot visit a hotel, visit a restaurant, visit a department store on the basis of the fact of your color, not on the question of your dress, or your ability to pay, but just on the basis of your color, that gets back to the idea that a Negro is inferior, which goes back in turn to the fact that they were slaves.

Senator ERVIN. Was not that theory discussed and explored in the Civil Rights Cases of 1883, and didn't the court repudiate it?

Attorney General KENNEDY. That is correct. Now, many of the statutes dealing with this subject, I might say, Senator, the particular statutes dealing with public accommodations, were passed after the decision of 1883. The Jim Crow laws came in, starting in 1890 and through the first part of the 20th century. So this situation didn't exist as much in 1883.

Senator HART. Would the Senator yield?

Senator ERVIN. Yes.

Senator HART. Earlier this morning I attended a hearing before the Committee on Commerce, which is considering a separate bill, which is title II, the public accommodations section, the section now being discussed by the Senator from North Carolina.

Dean Griswold of the Harvard Law School explicitly suggested to the Commerce Committee that, indeed, the 13th amendment in his opinion was a jurisdictional basis for the enactment of this title, suggesting that what we are dealing with here in truth is a vestige of slavery. I don't know whether you prefer the dean of the law school or the Attorney General, though you have both.

Attorney General KENNEDY. Don't choose, please, Senator.

Senator ERVIN. I will say this to the Senator from Michigan. Dean Griswold made the same statement in the hearings last year on the literacy test bills. I said, "Now, Dean, do you seriously contend that there is any relationship between literacy tests and slavery?"

Dean Griswold admitted at that time that the literacy test bills would find little support in the 13th amendment and that, on the contrary, he would rather depend upon other constitutional provisions to sustain such bills.

Senator HART. This was with respect to literacy, not accommodations.

Senator ERVIN. When the present administration began to call his professors from the Harvard Law School to Government service, Dean Griswold was quoted as saying that old deans don't die; they merely lose their faculties. I am constrained to say in the best of humor and without any malice that if Dean Griswold thinks the public accommodations provisions of this bill can be sustained by the 13th amendment, he must still be losing his faculties.

Mr. Attorney General, I would like to ask whether you agree with this statement:

A citizen has no rights within the protective power of Congress except such as are expressly or by necessary implication granted or secured to him by the Constitution of the United States, and the power to protect all rights not so granted or secured rests exclusively with the States.

This pronouncement was made by the Supreme Court of the United States in United States v. Cruikshank, 92 U.S. 542.

Do you agree with that?

Attorney General KENNEDY. I believe I do, Senator. I did not hear the whole thing. What year was that?

Do you have the year?

Senator ERVIN. No; but it was before you and I were even born. It was about 1880, I imagine.

Attorney General KENNEDY. Could I read it? It might make it easier.

Senator ERVIN. I am afraid to have you read my writing, because I don't want to take any literacy test myself.

Attorney General KENNEDY. I think I probably would accept it, Senator. It does give me a little concern―

A citizen has no rights within the protective power of Congress except such as are expressly or by necessary implication granted or secured to him by the Constitution of the United States and the power to protect all rights not so granted or secured rests exclusively with the States.

I would think I could accept that.

Senator ERVIN. I think that is a valid statement. I construe what you had to say in your statement concerning the theory that the actions of persons licensed by the State to carry on individual activities constitute State action to be in agreement with my views on this subject. Attorney General KENNEDY. I think that is right.

Senator ERVIN. I cannot find any basis to support the theory that if a State exacts a license tax from a man to pay the cost of government such exaction of such tax makes the action of the man State action.

Attorney General KENNEDY. As you say, merely because of that or solely because of that, I don't think would be sufficient.

Senator ERVIN. I am sorry that my good friend, the senior Senator from Connecticut, is unable to be present at this time. He is interested in the question which I will now discuss.

I do not know any State in the Union which does not require lawyers to be licensed to practice and to pay a license tax. In my judgment, there is no validity whatever to the theory that the action of a lawyer in private practice or the action of any other person in a private business becomes State action under the 14th amendment merely because the State compels him to pay a license tax, which is used to assist the State in supporting its public functions. This theory has been expressly repudiated by several Federal court decisions.

One of these Federal cases is Grubbs v. Slater, 144 F. Supp. 544. The plaintiff in that case brought a suit for damages for the alleged violation of his civil rights on the theory that the actions of two attorneys, Tom Mapother and Elmer Morgan, constituted State action. Within the purview of the civil rights statutes and the 14th amend

ment.

In rejecting this argument, and dismissing the case, the U.S. District Court for the Western District of Kentucky had this to say:

One of the questions raised by the motion to dismiss is whether the attorneys Mapother and Morgan are subject to liability under the civil rights statutes. In the case of Botonne v. Lindsley, 10 Cir. 170 F. (2) 705, 706, the Court said:

We seriously doubt whether lawyers who invoke the jurisdiction of the State court for the purpose of prosecuting a claim against a private individual, are