BOARD OF SUP'RS, ETC. v. Tureaud

• Decision Date: 28 October 1953
• Docket Number: No. 14752.,14752.
• Citation: 207 F.2d 807
• Parties: BOARD OF SUP'RS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE et al. v. TUREAUD.
• Court: U.S. Court of Appeals — Fifth Circuit

207 F.2d 807 (1953)

BOARD OF SUP'RS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE et al. v. TUREAUD.

No. 14752.

United States Court of Appeals Fifth Circuit.

October 28, 1953.

L. H. Perez, New Orleans, La., W. Scott Wilkinson, Shreveport, La., L. W. Brooks, Baton Rouge, La., Fred S. Le Blanc, Atty. Gen., of La., W. C. Perrault, First Asst. Atty. Gen., J. Clyde Pearce, Asst. Atty. Gen., J. H. Tucker, Jr., Shreveport, La., Fred Blanche, Baton Rouge, La., Arthur O'Quin, Shreveport, La., Victor A. Sachse, Baton Rouge, La., R. B. Sadler, Jr., Alexandria, La., C. C. Bird, Jr., James R. Fuller, C. V. Porter, Baton Rouge, La., H. C. Sevier, Tallulah, La., A. J. Shepard, Jr., Lake Charles, La., Grove Stafford, Alexander, La., Oliver Stockwell, Lake Charles, La., Wood Thompson, Monroe, La., Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., Wilkinson, Lewis & Wilkinson, Shreveport, La., of counsel, for appellants.

Robert L. Carter, Thurgood Marshall, New York, N. Y., A. P. Tureaud, New Orleans, La., U. Simpson Tate, Dallas, Tex., for appellee.

Before HUTCHESON, Chief Judge, and RUSSELL and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

Brought against state officers of the state of Louisiana, and drawn with precision for the purpose¹ and with the effect² of requiring the convening of a three judge court under Sections 2281 et seq. Title 28 U.S.C., the complaint sought injunctive relief, interlocutory and final.

Instead, as was required by Sec. 2284, Chapt. 155, Title 28 U.S.C., of taking the steps required of him for the constitution of the three judge court, as prayed,³ the district judge proceeded with the hearing as though it were a case for one instead of three judges, and, setting the interlocutory injunction before himself as a single judge, heard and granted it, D.C., 116 F.Supp. 248.

The defendants, appealing from that order, are here seeking a stay of it pending the decision of their appeal, and a vacation and reversal of it as improvidently entered, because (a) the case being for three judges, the order was entered without jurisdiction, and (b) if there was jurisdiction, the order was, for the reasons pressed by them, wrongfully entered.

The appellees, vigorously opposing this view, assert, contrary to the established and settled history and construction of the applicable statute requiring the constitution of a three judge court, that the statute is a purely technical one and must be strictly limited whenever reasonably possible to do so.

That this is not so, a documented statement of the mischief and defect for which the law did not provide before the enactment of this highly remedial legislation may be found set out in many law review articles and decisions. These have made it clear that whenever the case is one for three judges, that is where an injunction is sought against a state statute or order of a state administrative body on the grounds of its unconstitutionality, the district judge is forbidden to proceed alone where the suit is against a state officer.

In "A Case for Three Judges", 47 Harvard Law Review, 795, the writer, using Heydon's case as his test and guide, undertook to examine into and point out: "(1) What was the common law before the making of the Act? (2) What was the mischief and defect for which the common law did not provide? (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth? And (4) The true reason of the remedy?" and that "then the office of all the judges is always to make such construction as shall suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the act, pro bono publico." Beginning at page 803 of that article appears a documented statement of the mischief and defect which it was the purpose of the statute to relieve against.

It is, therefore, a misconstruction of the decision in Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800, to conclude that the Supreme Court intended therein to label this highly remedial statute as a mere technicality to be evaded and circumvented by a single district judge at will. Indeed, the appellees in their brief themselves state the correct rule thus: "Where the technical jurisdictional prerequisites of Section 2881 are met, a three judge court becomes mandatory", citing many cases.

It is true that the plaintiff has it in his own hands to determine by the allegations of his complaint, in the first instance, whether a three judge court should be summoned, and, further, if, as originally drawn, his complaint presents a case for three judges, he may by amendment to or abandonment of his claim requiring the constitution of a three judge court, enable the district judge to proceed alone. This was many times taken advantage of, under the statute before it was amended to provide a three judge court in all cases where an injunction was sought, by the action of the plaintiff, if he desired one judge action, in dismissing his prayer for interlocutory injunction. Emphatically, however, the statute does not permit the district judge to pick and choose among the allegations of a complaint and, ignoring those which require the constitution of a three judge court, proceed with the case as though those allegations had never been in, or had been dismissed from, the complaint.

As brought and pressed here, without amendment, abandonment, or any departure, plaintiffs' suit was based upon an affirmative declaration that Article 12, Sec. 1 of the Constitution of Louisiana, set out in note, 1, supra, the statutes of Louisiana passed pursuant thereto and the order of the Board of Supervisors based thereon, were violative of the Constitution of the United States, and that plaintiff was entitled to injunctive relief therefrom.

Under these circumstances, the district judge, in proceeding alone, exceeded his jurisdiction and invaded the jurisdiction of the statutory three judge court provided by Section 2281 et seq.

Appellees' reliance on our case, Wichita Falls Jr. College Dist. v. Battle, 5 Cir., 204 F.2d 632, 633, will not at all do. That case was not in any view a case for three judges. As was carefully and correctly pointed out in the footnotes to that opinion, Art. 7 of the Constitution of the State of Texas, and Article 2900, Vernon's Annotated Civil Statutes, while providing in the Constitution: "Separate schools shall be provided for the white and colored children", and in the statute, that "all available public school funds of this State shall be apportioned in each county for the education alike of white and colored children"; also provided, "and impartial provision shall be made for both". This being so, it would have been difficult, if not impossible, in the light of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sweatt v. Painter, 339 U. S., 629, 70 S.Ct. 848, 94 L.Ed. 1114, and Gray v. University of Tennessee, D.C., 97 F.Supp. 463, to state a case, short of one attacking segregation per se, which was an attack upon that constitution and that statute as unconstitutional on their face. In addition, the suit was not brought, as here, to enjoin an order of a state administrative body. On the contrary, the suit was an ordinary suit under the civil rights acts to enjoin practices instituted by the defendants named, under color of state law, which in themselves were violative of plaintiffs' civil rights.

Further, defendant in its answer alleged: "It is only where there is lack of substantial equality in facilities and opportunities that the Federal Courts will apply the Constitutional law of the United States. There being equal facilities and opportunities provided in Texas for negro and white children separately, no violation exists, and these defendants pray that they be permitted to continue to function under the general educational system established and provided and maintained in part by the State of Texas", and based upon allegations recognizing that equal facilities and opportunities must be furnished both races, the defendants filed a cross action for a declaratory judgment, alleging that they had complied with this requirement.

To this cross action plaintiff filed its answer, and the cause was submitted on a stipulation as to the fact and the issues. This stipulation presented no issues as to the constitutionality of the Constitution and Statutes of the State of Texas, but only "Whether the action of the defendants in pursuing the Constitution and the State Law of Texas is violative of the Constitution of the United States", and "Whether the defendants' conduct in denying to minor plaintiffs the educational facilities in Hardin Junior College solely on account of race and color, while making said facilities available to all non Negro students under the same and similar circumstances and with similar qualifications, is a denial to the plaintiffs rights and privileges protected and guaranteed under the Federal Constitution."

Finally, the defendants in the Battle suit were not state officers and the jurisdictional element essential to the constitution of a three judge court was completely lacking.

We are in no doubt that the suit from which this appeal comes was one for three judges,⁴ that the district judge was without jurisdiction to hear and determine the application for injunction, and that the order should be vacated and the cause remanded to the district judge with directions to take further proceedings not inconsistent herewith.⁵

Reversed and remanded.

RIVES Circuit Judge (dissenting).

With considerable deference, I must in good conscience dissent, though respectfully. This case presented, I think, purely a factual question, the decision of which was for the district judge, and...