Borden v. Louisiana State Board of Education
| Citation | 123 So. 655,168 La. 1005 |
| Decision Date | 26 November 1928 |
| Docket Number | 29569 |
| Court | Louisiana Supreme Court |
| Parties | BORDEN et al. v. LOUISIANA STATE BOARD OF EDUCATION et al |
On the Merits, June 17, 1929; Rehearing Denied July 8, 1929
Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; Geo. K. Favrot, Judge.
Suit by Silas P. Borden and others against the Louisiana State Board of Education and others. From an adverse judgment, plaintiffs appeal.
Affirmed.
Thigpen Herold, Lee & Cousin, Blanchard, Goldstein & Walker Smitherman, Tucker & Mason, Pugh Grimmet & Boatner, Chas. H Blish, J. S. Atkinson, and F. E. Greer, all of Shreveport, and C. C. Bird, of Baton Rouge, for appellants.
Percy Saint, Atty. Gen., Peyton R. Sandoz, Asst. Atty. Gen., Burke & Smith, of New Iberia, and White, Holloman & White, of Alexandria, for appellees.
On Motion to Dismiss Appeal.
Plaintiffs, 17 in number, as citizens and taxpayers, instituted this suit in the district court for the parish of East Baton Rouge for the purpose of obtaining the annulment, on the ground of their unconstitutionality, of certain provisions of Act No. 100 of 1928, commonly known as "The Free Text-Book Act," and of Act No. 143 of 1928, appropriating the necessary funds for the purchase of the text-books. The defendants are the state board of education, state superintendent of public education, state auditor, and state treasurer. In their suit, plaintiffs also seek to enjoin the defendants from providing free school books out of the severance tax and from taking any other action whatever under the provisions of the statutes.
After a hearing on a rule nisi, the court below refused a preliminary injunction on the ground that plaintiffs' petition did not disclose any right or cause of action. Thereupon, plaintiffs applied to this court for writs of certiorari and mandamus, and their application was denied. (Docket No. 29, 540.) They also appealed devolutively from the judgment, and the transcript was subsequently lodged in this court.
The defendants have moved to dismiss the appeal on the ground that the order heretofore rendered by the court denying plaintiffs' application for the remedial writs constitutes, in effect, res judicata between the parties.
But the plaintiffs invoked our supervisory jurisdiction solely to preserve the status quo pending their appeal, a remedy which the court below was powerless to grant. The only question that was before us for decision under the application was whether the relators were entitled to a mandamus compelling the judge of the district court to issue a preliminary injunction. What we said in refusing to grant the mandamus has not deprived plaintiffs of...
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