The CHAIRMAN. I will tell you one of the last things that I saw when I was practicing law in Cleveland, Miss. It was in the county that there is a town named Mound Bayou. There is a Negro attorney there named Green who was a graduate of Harvard University. I was in the circuit court there and I saw Green before a white jury representing a Negro against a white man whip the two leading lawyers, white lawyers in the county.

Attorney General KENNEDY. As I said, I do not think that this is really material.

As I said earlier, we need the legislation anyway. Even if you have three criminal statutes and these two other statutes, we still need this legislation.

Senator ERVIN. I think our colloquy of yesterday may show that the proposed amendments to the Civil Rights Act of 1960 clearly violate the due process clause of the fifth amendment. I do not like to have some Americans, even in Mississippi, not be allowed the constitutional safeguards, such as the right of trial by jury and the right to confront their accusers which are given to people like Al Capone.

I do not like to see basic rights estabilshed by constitutional processes such as the right to trial by jury withdrawn from people merely because they are alleged to have committed offenses in the racial field.

Attorney General KENNEDY. Senator, nobody is recommending that. If this bill is weak, constitutionally and as far as national policy is concerned, it does not seem to me it is necessary to say something about the bill that is not there, not present. The bill that we have suggested and that is before this committee does not do any of the things you have outlined.

Senator ERVIN. You and I disagree

Attorney General KENNEDY. You just have to read the bill, Senator. Senator ERVIN. I know the bill. In fact, I have just about memorized it.

Attorney General KENNEDY. I do not understand why, then, you make such a statement.

Senator ERVIN. Title I of this bill sets up a procedure whereby the Federal Government acting through a Federal district judge or voting referees appointed by him will take over the power to determine the qualifications of voters belonging to the Negro race and to order their registration immediately upon allegations made by the Attorney General without any proof of the truth of such allegations and without affording the State election officials involved any opportunity to disprove such allegations and without conducting any trial. We had that discussion yesterday.

Attorney General KENNEDY. But, Senator, you say they pass on the qualifications of the individual without the judge hearing from the State and that is just not true.

Senator ERVIN. I didn't say that. I said that they undertook Attorney General KENNEDY. Before they commence to begin. Senator ERVIN. Before they commence to begin. If title I of this bill should be enacted by Congress, the legal power of the State election officials to pass upon the voting qualifications of Negroes in any election district covered by the bill, will be automatically transferred

to the Federal judge or the voting referees appointed by him upon the unproved allegations of the Attorney General without notice and without a trial.

Attorney General KENNEDY. That is before you commence to begin. Senator ERVIN. Yes.

Attorney General KENNEDY. After you commence to begin, you don't do that.

Senator ERVIN. After the Department of Justice gets what is equivalent to a final judgment without any trial. I say that does not satisfy due process.

But we will go on to another matter now.

Let's leave the State of Mississippi. There is the State of Georgia. Georgia has about 158 counties, which are divided into three Federal judicial districts.

Oxford is not in Georgia. Now, certainly, we ought to be able to find in Federal jury boxes in Georgia, which are prepared by officials of the Federal Government, men who will return a verdict of guilty against local election officials whose guilt is established beyond any reasonable doubt.

Attorney General KENNEDY. I would say, Senator, that by and large we have found that individuals now who attempt to register in the State of Georgia, Negroes who attempt, are permitted to register in the State of Georgia.

Senator ERVIN. You cited some civil cases in Georgia.

Attorney General KENNEDY. I would say, Senator, at least in the last couple of years, from my experience, that, if there has been discrimination, when we have brought it to the attention of the local officials or the State officials something has been done about it and we have not had to bring cases.

Senator ERVIN. That is the reason why I object to legislation which on account of the offenses of some guilty people takes away basic legal protections of other people who are abiding by the law.

The CHAIRMAN. I would like to correct the record on Forrest County, Miss. If I recall, the Attorney General stated on yesterday that a suit was filed in Forrest County on-what is the date?

Attorney General KENNEDY. We can get it here.

The case was filed on July 6, 1961, and there has been no determination made.

The CHAIRMAN. Now, several weeks ago, the circuit clerk was cited for contempt by the Fifth Circuit Court of Appeals and ordered to register complainants in that case, 43 in number, if I am correct, which I know is correct.

Attorney General KENNEDY. I would like to have Mr. Marshall explain the present status of the case. I would say that we brought the case in July of 1961, when we found that 14 of the approximately 7,495 Negroes of voting age were registered to vote.

Do you want to tell the committee the status?

Mr. MARSHALL. Yes, Senator.

The case, as the Attorney General said, was filed in July of 1961. There was a hearing on a motion for preliminary injunction. That was denied by the district court. There was an appeal from that and a request for an injunction pending appeal before the court of appeals, which would be a limited interlocutory injunction. The court of ap

peals granted that injunction pending appeal. Thereafter, I think something like 95 out of the first 106 Negroes who applied to register before the registrar in Forrest County were rejected. Those included some highly educated Negro citizens of the county.

The CHAIRMAN. I understand, now, but the facts are

Mr. MARSHALL. Senator, if I could

The CHAIRMAN. All right.

Mr. MARSHALL. Then the contempt proceedings to which you refer were instituted and brought to trial last September, in 1962. I think about last week or the week before, there was a judgment of civil contempt against the registrar and he was ordered to do certain things. The CHAIRMAN. Well, he was ordered to register certain people. Mr. MARSHALL. Yes; Senator, but as far as the trial court is concerned, that case has not come to trial yet, Senator.

The CHAIRMAN. But the fact remains that the registrar was found in contempt and was ordered to register certain people. And that is the status of the case at this time.

Mr. MARSHALL. That is correct, Senator.

Senator ERVIN. There is one other comment. After making it, I will pass from this phase of it.

On page 25 of the Civil Rights Cases of 1883, which is reported in 109 U.S. 3, is a statement by the Supreme Court of the United States which points out precisely the legal defect in every civil rights proposal of modern days I have had occasion to study. The Court says this:

"When a man has emerged from slavery and by the aid of beneficent legislation has shaken off the inseparable concomitants of that State, there must be some stage in the progress of his elevation when he takes the life of a mere citizen and ceases to be the special favorite of the laws and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men's rights are protected."

I know of no better illustration of the truth of this statement than the Civil Rights Act of 1960 and the amendment which this bill would make to that act.

Under the Civil Rights Act of 1960, voting referees are authorized to try cases involving charges of wrongdoing against State election officials, and such State election officials are denied the right to participate in such trials either in person or by counsel.

Under the amendment which this bill would make to the Civil Rights Act of 1960, State election officials would be deprived of their power to pass on the qualifications of certain voters and their power would be transferred to Federal judges and voting referees without notice, without evidence, without trial, and without a judgment.

On yesterday, I called attention to cases, which hold that the action of practicing lawyers engaged in private practice under license from the State and as officers of the courts of the State do not constitute State action under the 14th amendment.

Among the cases I cited were Grubbs v. Slater, 144 F. Supp. 554, Swift v. the Fourth National Bank of Columbus, Georgia, 205 F. Supp. 563; Givens v. Moll, 177 Fed. 2d 765. I will add to them Kenney v. Fox, 232 Fed. 2d. 288.

Incidentally, the Kenney case was decided by the Court of Appeals of the United States in the circuit embracing the State of Michigan.

I would not say this myself, but that salty jurist, Circuit Judge Hutcheson, who wrote the opinion in the Givens case, said the notion that the acts of private attorneys constitute State action under the 14th amendment is fantastic.

The Grubbs case, the Swift case, the Givens case, and the Kenney case make it crystal clear that there is no constitutional basis for the theory that the action of individuals practicing professions or carrying on business becomes State action within the meaning of the 14th amendment merely because they are licensed by the State to practice such professions or to carry on such business.

Mr. Attorney General, if I construe your written statement aright, you and I seem to agree on this particular aspect of the matter. Attorney General KENNEDY. That is correct, sir.

Senator DODD. May I say to my colleague that I do not know where he gets the idea that I take a very different view. I have only said that I think the licensing power is one way in which we can get at this difficulty.

I do not know why we have to fuss about it. If the 14th amendment will help, let's take it. If the commerce clause will help, let's follow it on that. If there are any other provisions of the Constitution which will help, let's have them all in. I do not see why we have any argument on it, myself.

Attorney General KENNEDY. I understood that was your position, Senator.

Senator DODD. That is my position.

The CHAIRMAN. The State can only act under the law through its agents. Isn't the complete answer to it that the State acts only through agents?

Senator ERVIN. I think so. This point is important because the 14th amendment authorizes Congress to enact legislation to deal only with the violations of certain prohibitions upon State action. Certainly, it is important to show that the courts have held that there is no validity in the theory that when a State licenses a man to do something, the license converts the action of that man into State action within the purview of the 14th amendment. I consider that rather important.

Senator DODD. I did not mean it was unimportant, Senator. I do not think it is conclusive, as far as we are concerned, here.

Senator ERVIN. I call attention to the case of Harrison v. Murphy, (205 F. Supp. 449), which holds that restaurant owners who had no connection with a State agency were not acting under color of law in refusing service to a Negro under Delaware law which was permissive in character and permitted the owner of a restaurant to refuse service to persons whose reception would be offensive to a major part of his customers and would hurt his business.

This decision was handed down in May 1962, and cites an opinion in the case of Williams v. Howard Johnson's Restaurant, which I will also cite in a moment.

Harrison v. Murphy expressly repudiates the argument that the fact that the State licensed the restaurant to operate did not convert the action of the restaurant owner in denying service to a Negro into State action within the purview of the 14th amendment.

The case of Williams v. Howard Johnson's Restaurant (268 F. 2d 845), holds in substance that the public accommodations provision of the pending bill cannot be sustained under either the 14th amendment or the commerce clause. This decision was handed down by the U.S. Court of Appeals of the Fourth Circuit. The opinion was written by Judge Soper and concurred in by Judge Sobeloff and Judge Haynesworth. The court of appeals held that the privately operated restaurant located in Alexandria, Va., which was situated beside an interstate highway and which served interstate trade along with its other customers, had a right to select its own customers and that the commerce clause and the 14th amendment did not prevent it from excluding Negroes. This opinion was handed down July 16, 1959. I will read at this time only that portion of the opinion which makes it clear that the public accommodations provisions of this bill find no support in the 14th amendment.

The plaintiff concedes that no statute

For the guidance of the reporter, I will say I am reading from the beginning of the last paragraph on page 845.

The plaintiff concedes that no statute of Virginia requires the exclusion of Negroes from public restaurants and hence it would seem that he does not rely upon the provisions of the 14th amendment which prohibits the States from making or enforcing any law abridging the privileges and immunities of citizens of the United States or denying to any person the equal protection of the law. He points, however, to statutes of the State which require the segregation of the races in the facilities furnished by carriers and by persons engaged in the operation of places of public assemblage; he emphasizes a long established local custom of excluding Negroes from public restaurants and he contends that the acquiescence of the State in these practices amounts to discriminatory State action which falls within the condemnation of the Constitution. The essence of the argument is that the State licenses restaurants to serve the public and thereby is burdened with a positive duty to prohibit unjust discrimination in the use and enjoyment of the facilities.

This argument fails to observe the important distinction between activities that are required by the State and those which are carried out by voluntary choice and without compulsion by the people of the State in accordance with their own desires and social practices. Unless these actions are performed in obedience to some positive provision of State law they do not furnish a basis for the pending complaint. The license laws of Virginia do not fill the void. Section 35-26 of the Code of Virginia, 1950, makes it unlawful for any person to operate a restaurant in the State without an unrevoked permit from the commissioner, who is the chief executive officer of the State board of health. The statute is obviously designed to protect the health of the community, but it does not authorize State officials to control the management of the business or to dictate what persons shall be served. The customs of the people of a State do not constitute State action within the prohibition of the 14th amendment. As stated by the Supreme Court of the United States in Shelley v. Kramer, 334 U.S. 168, Supreme Court 836, 842, 92, Law Edition 116:

Since the decision of this Court in the Civil Rights cases, 1883, 109 U.S. 3, 3 Supreme Court 18, 27 Law Edition 835, the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the 14th amendment is only such action as may fairly be said to be that of the State. That amendment erects no shield against merely private conduct, however discriminatory or wrong.

I will make reference later to what the court of appeals says about interstate commerce.

Mr. Attorney General, yesterday you made a suggestion which I do not believe appears in your prepared statement, and which I therefore assume you did on the spur of the moment, that the power of