Kennedy v. Owen

PER CURIAM.

These consolidated cases came on for Rearing on the motion for summary reversal by appellant in each case. The demand letter attached to each application was addressed to the appellee followed by the words “Circuit Clerk.” Each appellee was in fact both Circuit Clerk and Registrar. The district court granted an inspection order as to the records each appellee possessed in his capacity as Circuit Clerk, but not as to the records in his custody as Registrar. The statute provides simply for a “demand in writing by the Attorney General or his representative directed to the person having custody, possession, or control of such record or paper * * *.” (Emphasis supplied.) 42 U.S.C.A. § 1974b (Supp.1962).

So long as the demand was addressed to and received by the proper person, it is immaterial that he was described as “Circuit Clerk” and was not also described as “Registrar.” The person must comply with the statute as to any record or paper required by Section 1974 of Title 42 to be retained and preserved, and which is in his custody, possession or control in any capacity.

There is no substance in the attacks of the appellees on the constitutionality of Title III of the Civil Rights Act of 1960 (P.L. 86-449, 74 Stat. 86, 42 U.S.C.A. § 1974, et seq.) under the Fifth Amendment, the Sixth Amendment, or any other part of the Constitution. See State of Alabama, ex rel. Gallion v. Rogers, M.D.Ala.1960, 187 F.Supp. 848, affirmed Dinkens v. Attorney General of United States, 5 Cir. 1961, 285 F.2d 430; Kennedy v. Lynd, 5 Cir. 1962, 306 F.2d 222, certiorari denied 371 U.S. 952, 83 S.Ct. 507, 9 L.Ed.2d 500.

It is therefore ordered:

That the judgments be, and they are hereby, reversed, and the causes are remanded to the District Court for the Southern District of Mississippi with instructions to grant forthwith the applications filed by the Attorney General of the United States and to order each appellee to make available to said Attorney General or his representative, for inspection, reproduction and copying, during reasonable business hours, all records and papers in the possession, custody or control of said appellee relating to any application, registration, payment of poll tax or other act requisite to voting in any primary, special or general election for Federal office in Mississippi, such inspection, reproduction and copying to take place in accordance with a schedule to be established forthwith by the District Court, and to commence forthwith in one of the seven counties herein involved, and upon completion thereof to commence in another of the seven counties, and to continue in such manner, county by county and in consecutive order, until such inspection, reproduction and copying is completed.

It is further ordered that appellees’ cross-appeals be, and they are hereby, dismissed.

It is further ordered that the mandate issue forthwith. See Rule 32 of Fifth Circuit, as amended May 31, 1963.

*118GEWIN, Circuit Judge, concurs specially.