Senator ERVIN. Don't you think there is quite a wide distinction between the Public Accommodations Act and the housing provisions of these proposed bills?

Senator HART. Yes, I think there is a distinction, Mr. Chairman, but with regard to the point of the constitutional foundation on which Federal action could reach the public accommodations and the private accommodations, I think that the support is as solid for the latter as for the former.

Senator ERVIN. But if you accord the commerce clause its plain meaning, it gives Congress the power to regulate the movement of persons, goods, and communications from one State to another, does it not?

Senator HART. It does.

Senator ERVIN. And the courts have elaborated on this to the extent of saying that the Congress can regulate intrastate activities insofar as the regulation of those intrastate activities is necessary or appropriate to the effective regulation of interstate commerce itself, that is to the movement of goods, persons, and communications from one State to another?

Senator HART. Correct.

Senator ERVIN. Now the Public Accommodations Act was upheld upon the theory that it dealt with interstate travelers, and upon the theory that it involved the sale of goods which had moved in interstate commerce, was it not?

Senator HART. It was.

Senator ERVIN. When a man buys a home, he is buying a place for a permanent residence and not lodging in interstate travel, isn't he? Senator HART. That is correct.

Senator ERVIN. And there is exactly an opposite condition existing in the purchase of homes from that which exists where people are traveling in interstate commerce.

Senator HART. In the fuller sense; yes. Of course, there are those who travel in search of homes.

Senator ERVIN. Yes; but whenever they find the home, they end the travel as far as acquisition of the residence is concerned. Personally I have never yet seen any real estate moving in interstate commerce except when a hurricane threw some dust from one State to another. If this is valid under the interstate commerce clause, then every human activity is subject to regulation under the interstate commerce clause.

Senator HART. Any human activity where hundreds of millions of dollars of financing crosses State lines, it might be; yes. Any activity where commodities in the total sum of hundreds of millions of dollars cross State lines, yes.

Senator ERVIN. Is it your position, for example, that if I receive some dollars across a State line, any activity I may engage in thereby becomes subject to regulation as interstate commerce?

Senator HART. Not in and of itself, but when related to the entire picture that we are here discussing, as was, so I think, effectively outlined in the Attorney General's opening testimony to this subcommittee, we do feel that the commerce clause reaches.

Senator ERVIN. This would cover cases where no money at all passes through interstate commerce, wouldn't it? Senator HART. That is correct.

Senator ERVIN. Now, on this housing proposition, is it not a fact that everywhere in the United States when this question has been voted on by the people, it has been rejected, without exception?

Senator HART. Knowing the care that the chairman applies to such research, if he says so, I am sure it is so, and I am not suggesting that that record is something that any of us can be proud of, even those who voted against open accommodation.

Senator ERVIN. Well, as a matter of fact, I don't ask the Senator to accept anything on my assurance, but doesn't the Senator know that in the city of Detroit there was a referendum on the question of socalled open occupancy, and that the people of Detroit rejected the proposal?

Senator HART. The chairman is correct, and I like to think that there have been some happy second thoughts. The leader of the drive on that referendum found his popularity such that he became a member of the Common Council of the City of Detroit. but happy second thoughts removed him last time.

Senator ERVIN. Yes, but so far as you know, the other 137,670 persons who voted against open occupancy in Detroit have not suffered any ill consequences.

Senator HART. In the sense that I described, the leader of the movement?

Senator ERVIN. Yes.

Senator HART. No, he was the only candidate.

Senator ERVIN. In the referendum, the proposition voted upon reads as follows:

The purpose and substance of the proposed ordinance is as follows: To define certain rights of Detroit residents and owners of residential property to privacy and to the free use, enjoyment and disposition of residential property including the right of selection or rejection of any persons as tenants or purchasers, the free choice of real estate brokers and to require such brokers to follow the instructions of the owners, and to fix penalties for the violation of the provisions of the ordinance.

Wouldn't you infer from the vote in Detroit that the majority of the people participating in that referendum felt that open occupancy invaded the right of privacy as well as the freedom of persons to dispose of their property in such manner as they see fit?

Senator HART. Why don't I limit my answer to saying that the majority of those people voting in that election adopted the language of the referendum.

Senator ERVIN. Yes, and the language of the referendum was a very emphatic statement of the right of privacy, and the right of people to select their own tenants and to sell their property to whom they pleased, free from governmental interference on the part of the city council or the city of Detroit.

Senator HART. Again I would content myself with the statement of the proposition. I should add also, Mr. Chairman, the next chapter to that story. The State of Michigan adopted a new constitution, and there are two relevant sections.

The first is article I, section 2, equal protection under the law:

No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.

Section 29

Senator ERVIN. But that wouldn't cover this situation in my judgment.

Senator HART. No

Senator ERVIN. Because no one has the civil right to compel somebody else to sell him his property or rent him his property.

Senator HART. The attorney general of Michigan and you are in disagreement. That is part of this next chapter.

Senator ERVIN. Yes, but I am in thorough disagreement with him because there is no book in the world that says any man has the civil right to compel somebody else to sell him any property.

Senator HART. I would assume he is in thorough disagreement with

you.

Senator ERVIN. Yes.

Senator HART. This is article V, section 29:

There is hereby established a civil rights commission which shall consist of eight persons, not more than four of whom shall be members of the same political party, who shall be appointed by the governor, by and with the advice and consent of the senate, for four-year terms not more than two of which shall expire in the same year. It shall be the duty of the commission in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. * * *

It shall establish procedures. The commission is given the power to investigate instances of alleged discrimination against any person because of religion, race, color, or national origin, and so on.

Now, why is this the next and necessary second chapter in the story of that homeowners ordinance? This constitution also was adopted by, not alone the people of the city of Detroit, but the people of the State of Michigan, and under the civil rights commission, after it was constituted, sought the opinion of the attorney general as to their status.

The attorney general expressed the opinion that the action of the people in adopting this constitution had preempted the field. That the authority of the civil rights commission extended throughout the State; that the Detroit ordinance was in effect annulled. And on that basis, Federal funds then were released for certain hard-core center city urban renewal projects.

Now I should have, and with the leave of the chairman, would like to file the attorney general's opinions. I do not have them. Senator ERVIN. Yes, they will be accepted and printed as part of the record.

(The document referred to follows:)

STATE OF MICHIGAN-FRANK J. KELLEY, ATTORNEY GENERAL

Civil Rights Commission: Powers of.

Legislature: Powers over Civil Rights Commission.

The Civil Rights Commission, established by Article V, Sec. 29 of the Revised Constitution, has plenary power in its sphere of authority to protect civil rights in the fields of employment, education, housing and public accommodations. The Civil Rights Commission has authority to enforce civil rights to purchase, mortgage, lease or rent private housing.

The legislature is without authority to abrogate or limit the power of the Civil Rights Commission in the fields of employment, education, housing and public

accommodations.

The Constitution empowers the legislature to make annual appropriations to finance the effective operation of the Civil Rights Commission. The legislature may in its discretion prescribe the mode and manner in which investigations are to be conducted by the Civil Rights Commission. Failure to enact such legislation is in no way a restriction upon the authority of the Commission.

In its rule-making power the Civil Rights Commission is not subject to Article IV, Sec. 37 of the Revised Constitution. The legislature is without power to set aside the rules of the Civil Rights Commission.

The Civil Rights Commission in promulgation of its rules is bound by the due process clause of both the state and federal constitutions.

Opinion No. 4161.

Hon. WILLIAM G. MILLIKEN,

State Senator,

Traverse City, Mich.:

JULY 22, 1963.

You have requested my opinion relative to the authority of the Civil Rights Commission created under the Revised Constitution. Specifically, your questions

are:

"1. Does the Civil Rights Commission establish by Art. V, Section 29, of the new Constitution have the plenary power to secure the equal protection of civil rights in the fields of employment, education, housing and public accommodations? "2. Does the authority of the Civil Rights Commission over housing extend to the enforcement of civil rights to purchase, mortgage, lease or rent private housing? "3. Is the Legislature empowered to abrogate or limit in any way the authority of the Civil Rights Commission in the fields of employment, education, housing and public accommodations?

"4. Must the Civil Rights Commission await appropriate legislation before it may undertake the investigation of alleged discrimination against any person in the fields of employment, education, housing and public accommodations? "5. Are the rules and regulations adopted by the Civil Rights Commission pursuant to Article V, Section 29, subject to legislative authority contained in Article IV, Section 37, or any other provision of law?"

In the Revised Constitution approved by the electorate on April 1, 1963, the people have established a Civil Rights Commission in Article V, Section 29 thereof. Article V, Section 29 provides as follows:

"There is hereby established a civil rights commission which shall consist of eight persons, not more than four of whom shall be members of the same political party, who shall be appointed by the governor, by and with the advice and consent of the senate, for four-year terms not more than two of which shall expire in the same year. It shall be the duty of the commission in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. The legislature shall provide an annual appropriation for the effective operation of the commission.

"The commission shall have power, in accordance with the provisions of this constitution and of general laws governing administrative agencies, to promulgate rules and regulations for its own procedures, to hold hearings, administer oaths, through court authorization to require the attendance of witnesses and the submission of records, to take testimony, and to issue appropriate orders. The commission shall have other powers provided by law to carry out its purposes. Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state.

"Appeals from final orders of the commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court having jurisdiction provided by law."

The people have mandated in Article I, Section 2 of the Revised Constitution that:

"No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation."

In the Address to the People, the framers of the Revised Constitution made the following comment relative to Article I, Section 2 of the Constitution:

"This is a new section. If protects against discrimination because of religion, race, color or national origin in the enjoyment of civil and political rights and grants

equal protection of the laws to all persons. The convention record notes that 'the principal, but not exclusive, areas of concern are equal opportunities in employment, education, housing and public accommodations.'

"The legislature is directed to implement this section by appropriate legislation and the proposed constitution establishes a Civil Rights Commission in the Article on the Executive Branch." (Emphasis supplied)

Consideration must be given to Article I, Section 4 of the Revised Constitution, which states in pertinent part:

***The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief."

Article VIII, Section 2 of the Revised Constitution provides in part as follows: "*** Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.'

The people, by self-executing provisions of the Revised Constitution, have established a constitutional body possessed of jurisdiction over the investigation of alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of civil rights guaranteed by law and by the Constitution. This entity is designed to secure the equal enjoyment of such civil rights without discrimination, to adopt rules and regulations for its own procedures, to hold hearings, to administer oaths, to require the attendance of witnesses and the submission of records through court authorization, to issue appropriate orders including cease and desist orders, and to have such other powers as shall be privided by law to carry out its purposes.

From a plain reading of Article V, section 29, it is clear that the people have conferred plenary power upon the Civil Rights Commission in its sphere of authority as a constitutional commission to investigate and to secure the enjoyment of civil rights without discrimination. Plec v. Liquor Control Commission (1948), 322 Mich 691.

The authority of the Civil Rights Commission is limited only by the Revised Constitution and the Constitution of the United States. State v. Mountain States Telephone and Telegraph Company (N.M. 1950), 224 P 2d 155.

The grant of power in the Constitution carries with it by implication the authority to do all things necessary and appropriate to accomplish the purpose intended by the people. Thus the Civil Rights Commission created by the people in the Constitution is not limited to the powers expressly granted, and the Commission may exercise all powers necessary and essential in the performance of its duties. Board of Supervisors of Atala County v. Illinois Central Railroad Company (Miss. 1939), 190 So. 241; Gavey v. Trew (Ariz. 1946), 170 P 2d 845.

The powers of the Commission should be liberally construed and every power explicitly granted or fairly implied from the language used which is necessary to enable the Commission to exercise the powers expressly granted should and must be accorded. City of Portsmouth v. Virginia Railway and Power Company (Va. 1925), 126 SE 362, 39 ALR 1510.

Thus there can be no question but that Article V, Section 29 of the Revised Constitution empowers the Civil Rights Commission to conduct investigations, hold hearings and issue final orders upon its own motion when the public interest demands.

It is equally clear that the Commission has been commanded by the people to serve the cause of elimination of discrimination in the fields of employment, education, housing and public accommodations because of religion, race, color or national origin and to advance equal opportunities therein through the fostering of educational programs, studies, and reports. This furthers both the public interest and the interest of the individual.

The legislature cannot decrease or abrogate the constitutional powers of the Civil Rights Commission. It may increase its authority and delegate additional powers to the Commission. Oliver v. Oklahoma Alcoholic Beverage Control Board (Okla. 1961), 359 P 2d 183.

There can be no question that the people have conferred authority not subject to legislative restraint on the Civil Rights Commission to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of civil rights guaranteed by law and by the Michigan Constitution and to secure the equal protection of such civil rights without such discrimination. The provision is self-executing.

Since the authority of the Civil Rights Commission is limited only by the State Constitution and the Constitution of the United States, the legislature may not restrict the Commission in the exercise of such authority. Article V, Section 29, empowers the legislature, in its discretion, to prescribe the manner in which