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"The broken package doctrine" is succinctly stated by the Supreme Court in Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 290, as follows:
Where goods in one State are transported into another for purposes of sale the commerce does not end with the transportation, but embraces as well the sale of the goods after they reach their destination and while they are in the original packages.
The claim that the intrastate sale or renting of goods which have moved in interstate commerce is in itself interstate commerce is in the teeth of the long line of cases illustrated by the statement of Mr. Justice Brandeis in Pacific States Box & Basket Co. v. White, 296 U.S. 176, 80 L. Ed. 138:
The operation of the order is intrastate, beginning after the interstate movement of the containers has ceased, and after the original package has been broken.
That the basis used in this bill to attempt to transform intrastate commerce into interstate commerce is untenable is demonstrated by the decision of the Court of Appeals of the Fourth Circuit quoted above, Williams v. Howard Johnson, 268 F. 2d 845 (1959) as follows:
We think, however, that the cases cited are not applicable because we do not find that a restaurant is engaged in interstate commerce merely because in the course of its business of furnishing accommodations to the general public it serves persons who are traveling from State to State. As an instrument of local commerce, the restaurant is not subject to the constitutional and statutory provisions discussed above and, thus, is at liberty to deal with such persons as it may select.
See also Elizabeth Hospital, Inc. v. Richardson, 269 F. 2d 167, decided by the Court of Appeals of the Eighth Circuit in 1959, which cites the decision of the Supreme Court supporting the rule as follows:
We think that the plaintiff's operation of a hospital, to include rendition of hospital services to some persons who came from outside the State, is no more engaging in interstate commerce than was Dr. Riggall in rendering medical services to persons who likewise came from other States. The fact that some of the plaintiff's patients might travel in interstate commerce does not alter the local character of plaintiff's hospital. If the converse were true, every country store that obtains its good from or serves customers residing outside the State would be selling in interstate commerce. Uniformly, the courts have held to the contrary. A. L. A. Schechter Poultry Corp. v. United States, 1935, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570; Lawson v. Woodmere, 4 Cir., 1954, 217 F. 2d 148, 150; Jewel Tea Co. v. Williams, 10 Cir., 1941, 118 F.2d 202, 207; Lipson v. Socony-Vacuum Corp., 1 Cir., 1937, 87 F. 2d 265, 267, certiorari granted 300 U.S. 651, 57 S. Ct. 612, 81 L. Ed. 862, certiorari dismissed 301 U.S. 711, 57 S. Ct. 788, 81 L. Ed. 1364.
Space will not permit further citation of authorities or discussion of the many other phases of this legislation which are unconstitutional. Titles I and II have been discussed in this report as illustrative of the total disregard of the Constitution of the United States by those who drafted this legislation. We will not burden this report with further authorities.
If this bill is enacted, the basic and fundamental power of the States and the power of our local governments to regulate business and to govern the relation of individuals to each other will have been preempted.
In all the years Congress has pondered the equities of civil rights legislation, no committee has ever suggested for the executive such totality of power as is embodied in this package of legislation. Grant it, and our fire ball of liberty will spin into darkness, suffocate. For our Republic cannot live without breath and the breath of our Republic is personal liberty and personal responsibility.
E. E. WILLIS.
BASIL L. WHITENER.
SEPARATE MINORITY VIEWS OF HON. RICHARD H. POFF AND HON. WILLIAM CRAMER
We regard it as our duty to protest the manner in which this legislation was handled in committee. Without duplicating what others have developed in detail, we must underscore what has been said. If such procedural departures and parliamentary irregularities are countenanced in the future, then the committee system as a functional part of traditional legislative mechanics has expired. But we shall not dwell further on that.
Neither shall we undertake to make an exhaustive analysis of the bill by titles. Instead, we shall address ourselves to the bill by subject matter.
The 15th amendment to the Constitution says that
The right of citizens of the United States to vote shall not be
We take that language to mean what it says. What it says is that government at no level, Federal, State or local, can (1) deny a citizen the right to vote on account of race or (2) abridge the citizen's right to vote on account of race. This means that no level of government can grant the franchise to one race and deny it to another; but it means more than that. It means that, having granted the franchise to all races, no level of government can abridge the voting privilege of an individual citizen of one race by requiring him to meet voter qualification criteria which are not required of an individual citizen of another race. In other words, all citizens of all races who meet voter qualifications standardly prescribed and uniformly applied are entitled to vote. To the content and purpose of the 15th amendment, and to the principle behind it, we fully subscribe.
The 15th amendment, however, says nothing whatever about voter qualifications which citizens, regardless of race, are required to meet. Most certainly it does not say that the Federal Government shall have the power to prescribe voter qualifications. Neither does any other part of the Constitution. Indeed, article 2, section 1, clause 2 says that presidential electors shall be selected "in such manner as the legislature thereof may direct." The courts have consistently held that this means that the States have the exclusive right to establish voter qualifications in presidential elections. Walker v. United States, 93 F. 2d 383 (8th Cir., 1937), certiorari denied 303 U.S. 664. Moreover, article I, section 2, says that in House of Representatives elections, voters in each State "shall have the qualifications requisite for electors of the most numerous branch of the State legislature." The same language is repeated in the 17th amendment concerning Senate elections. The courts have uniformly held that this language means that the States and only the States have the right to prescribe
voter qualifications. The only restraint upon this right is the prohibition in the 14th and 15th amendments against racial discrimination in the promulgation and application of voter qualifications.
There are those who maintain that article I, section 4, grants the Federal Government power to invade the field. That section does grant Congress the power to make or alter certain regulations written by the States. However, the power is limited to regulations governing "the times, places, and manner of holding elections" for Members of Congress. Clearly, this language pertains to the mechanics of conducting elections and not to voter qualifications.
Just as clearly, a literacy test does not fall within the meaning of that language. A literacy test is a test of the qualification of the voter. The Supreme Court has repeatedly ruled that States have the power to impose literacy tests to determine whether a citizen is qualified to vote. Williams v. Mississippi, 170 U.S. 213 (1898), Lassiter v. Northampton County, 360 U.S. 45 (1959). Only when the test is not applied uniformly or is applied in a discriminatory manner is it unlawful under the 15th amendment. Davis v. Schnell, 81 F. Supp. 872, affirmed, 336 U.S. 933 (1949).
Notwithstanding the Constitution and court decisions, title I of this bill undertakes to legislate in the field of voter qualifications by abridging the rights of the States to prescribe literacy tests. The majority apologizes for this Federal trespass on the grounds that the bill only raises a presumption of literacy which is rebuttable. How innocuous this sounds. Consider the legal consequences which this rebuttable presumption entails. In a court case, the State registrar would be required to carry the burden of proving, by a preponderance of the evidence, that the voter applicant was illiterate. If the applicant can successfully avoid a literacy test, this burden would not be light.
The 15th amendment also empowers the Congress to write legislation implementing its guarantee. In 1957, Congress wrote what is now Public Law 85-315 which, among other things, authorizes the Attorney General to bring suits for injunctions to prevent deprivation of voting rights on racial grounds. In 1960, Congress wrote what is now Public Law 86-449. Under that law, when the Attorney General has brought a suit for injunction and the court has found that some person's voting rights have been denied or abridged on account of race, the Attorney General may ask the court to find a "pattern or practice" of discrimination. If such a pattern or practice is found, any Negro in the area concerned may apply for a court order declaring him qualified to vote. Within 10 days, the judge must hear his case, and if he is satisfied that the applicant is otherwise qualified under State law, he issues an order permitting the applicant to vote. The judge also has the power to appoint voting referees to receive such applications, to take evidence concerning qualifications and to make recommendations to the judge.
In our judgment, the legislation already on the statute books fully satisfies the mandate of the 14th and 15th amendments. The legal procedure it establishes is expeditious and efficient and the relief it grants is thorough and complete. Yet, the Attorney General contends that the procedure is cumbersome and lends itself to delay which frustrates its purpose. Allegedly to obviate delay, he recommends and the legislation authorizes the three-judge court concept with
appeals, bypassing the circuit court of appeals, directly to the Supreme Court.
We suggest that another reason may have prompted the establishment of this new concept. Since the adoption of the 1957 and 1960 acts, the Attorney General has seen fit to bring only 40-odd cases to the courts. In some of these cases, the courts have found that a. "pattern or practice" of discrimination existed. In a number of cases the court has found that no such pattern or practice existed. Can it be that the Attorney General is unhappy with the negative decisions rendered by individual district judges? The three-judge court concept enables the Attorney General, when he has no confidence in the ndividual district judge involved, to do a little forum shopping. Upon his demand, three judges rather than one would be impaneled to hear voter discrimination cases. While one of these three must be a district judge of the district in which the proceeding was instituted, the other two judges, one of whom must be a circuit judge, may come from any other geographical area of the State or outside the State within the circuit involved. Moreover, if the Attorney General does not demand a three-judge court, and if no individual district judge of the district in which the proceeding was brought is available, then the chief judge of that district can designate a judge serving any other district in any other State located in the circuit. Undoubtedly in the designation of such an individual judge, the chief judge would lend much weight to the preference suggested by the Attorney General. It goes without saying that the defendant in the proceedings has no equivalent opportunity to shop for his forum. While the Congress may have constitutional power to grant the Nation's chief law enforcement officer such a preferential procedural privilege while denying it to the citizen he is suing, the Congress is not bound to exercise that power. Rather, it should exercise legislative restraint and decline to do so.
With respect to the voting section, one final point needs to be made. With a great pretense at moderation, the Attorney General recommends that the section be confined to Federal elections, and the majority reports that it is so confined. In fact, it is not. As a practical matter, the section covers any election if a single candidate for a single Federal office is running in that election. Stated differently, if elections of State Governors and county sheriffs are held at the same time as congressional elections, then title I is applicable to all applicants seeking to vote in that election. This clearly appears from the subsection 101 (c) of the bill which refers to "any general, special, or primary election held solely or in part" for the purpose of electing Federal officials. Moreover, title I directly or indirectly amends section 1971(a) of the existing law which refers to all elections. In defining the word "vote," section 1971 (e) of existing law refers, not to candidates for Federal office, but rather to "candidates for public office".
Accordingly, it cannot be effectively argued that title I successfully confines itself to Federal elections.