BOARD OF SUPERVISORS, ETC. v. Tureaud

• Decision Date: 26 October 1955
• Docket Number: No. 15540.,15540.
• Citation: 226 F.2d 714
• Parties: BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, et al., Appellants, v. Alexander P. TUREAUD, Jr., a Minor, By Alexander P. Tureaud, Sr., His Father and Next Friend, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

226 F.2d 714 (1955)

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, et al., Appellants, v. Alexander P. TUREAUD, Jr., a Minor, By Alexander P. Tureaud, Sr., His Father and Next Friend, Appellees.

No. 15540.

United States Court of Appeals Fifth Circuit.

October 26, 1955.

COPYRIGHT MATERIAL OMITTED

W. Scott Wilkinson, Shreveport, La., L. H. Perez, New Orleans, La., L. W. Brooks, C. V. Porter, and J. R. Fuller, Baton Rouge, La., for appellant.

A. P. Tureaud, New Orleans, La., and Robert L. Carter, New York City, for appellee.

Before RIVES and CAMERON, Circuit Judges, and DAWKINS, District Judge.

PER CURIAM.

After long and serious study of the petition for rehearing the majority of the court has reached the conclusion that a rehearing should be granted. These are some of the considerations which have led to that conclusion:

The complaint alleged that the action of the Supervisors and other administrative officers of L.S.U., in refusing to admit plaintiff as a student at L.S.U., in the category which he sought, pursuant to the state Constitution and statutory provisions, was violative of the Fourteenth Amendment to the Federal Constitution, and for this reason a statutory court of three judges, 28 U.S.C.A. § 2281 et seq. should be convoked to hear the case. The trial judge held, in effect, that he alone had jurisdiction, and not the three-judge court, under the well settled doctrine of equal facilities, and found at the hearing, when the case was first tried, the facts in detail to show that courses and facilities of Southern University (devoted exclusively to the colored race) were greatly inferior to those of L.S.U. He therefore concluded that the refusal to admit plaintiff was violative of the Fourteenth Amendment. D. C., 116 F.Supp. 248.

On appeal, this court, one member of the panel dissenting, held that the judge below was without jurisdiction sitting alone, and remanded the case for the convocation of the statutory court. Board of Sup'rs of La. State University, etc. v. Tureaud, 5 Cir., 207 F.2d 807.

On application of plaintiff, the Supreme Court granted certiorari and by a per curiam opinion (covering three cases, Nos. 9, 85 and 595) 347 U.S. 971, 74 S.Ct. 783, 784, 98 L.Ed. 1112, said: "The petitions for writs of certiorari are granted. The judgments are vacated and the cases are remanded for consideration in the light of the Segregation Cases decided May 17, 1954, Brown v. Board of Education, etc., 347 U.S. 483, 74 S.Ct. 686 98 L.Ed. 873, and conditions that now prevail".¹ The mandate issued by the Clerk of the Supreme Court to the Clerk of this court June 28, 1954 added to the foregoing judgment the phrase, "Vacated without Costs". The very use of the word "vacate" (which indicates only to make vacant), instead of the word "reverse", which carries the implication of disapproval,² is significant of the fact that the Supreme Court was not finding fault with our decision and judgment when the case was formerly before us, but was merely nullifying our judgment in order that we might follow the mandate contained in the Supreme Court's decision. That mandate was that we consider the whole case in the light of two things, the Segregation Cases and "conditions that now prevail". The inclusion of the phrase, "without costs", fortifies that concept of the effect of the Supreme Court holding because successful litigants recover costs. Upon receiving this mandate we passed it along in identical terms of the District Court in order that the consideration of these two new factors might be given by the trier of the facts as ordered by the Supreme Court.

When the case was first on appeal, plaintiff changed his position entirely, abandoned his request for a three-judge court, and relied solely upon the fact question of equal facilities and the findings of the trial court; but at no time did he offer to amend his pleadings to conform thereto. His position before the Supreme Court, when he applied for certiorari, was again modified to conform with the expediencies of the situation, also in the original complaint. When the case went back to the District Court on the action of this court pursuant to the Supreme Court's mandate, plaintiff did nothing but file a motion for reinstatement of the preliminary injunction, assigning no grounds at all. The case was set down on the motion calendar alone, as distinguished from the merits, and was heard as such. The motion was sustained without any further allegations or proof either that there had or had not been any change in the conditions that now prevail from those which existed when the complaint was filed, and without giving the Supervisors any opportunity to introduce any pertinent proof which may be embraced within the purview of the two Supreme Court decisions.

Of course, the vacating by an appellate court of a judgment is not necessarily the same thing as a complete reversal and remand for a new trial, it being well settled that the latter requires all previous evidence to be reintroduced to have effect. Madden Furniture, Inc., v. Metropolitan Life Ins. Co., 5 Cir., 127 F.2d 837; Shell Petroleum Corp. v. Shore, 10 Cir., 80 F.2d 785. As shown above, the vacation of the judgment of this court without costs indicates a desire primarily to place the record in such shape that the case might be tried again solely on the ground that new criteria of decision had been introduced, to-wit, the decision in the Segregation Cases and the consideration to be given to "conditions that now prevail", as spelled out in the Segregation Cases. It may be that the effect of the Supreme Court's order was that the trial should proceed as unfinished, contemplating the use of the former evidence if considered by either side as applicable, together with the introduction of further evidence. Whatever the order may mean, considering the unusual turn the case took after plaintiff switched his positions, and the background of the many other cases with which the court was dealing at the time, it is not reasonable to conclude that the disposition by the Supreme Court, in a matter of such importance, can be treated as having completely done away with all statutory and jurisprudential rules of procedure and pleading.

The cases relied upon by Judge Rives in his dissent on the first appeal, and by Judge Wright, Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149; Wichita Falls Junior College Dist. v. Battle, 5 Cir., 204 F.2d 632, and others were presented in such a manner, either because of stipulations or other developments, as to involve only issues of fact — that is, were the facilities equal? Here, however, in view of the plaintiff's switch in position, the issues contained in the pleading clearly embrace that of conflict between the Fourteenth Amendment and the state constitutional and statutory provisions, and the injunction has been granted by one judge on that ground, as well as the action of the administrative officials thereunder. Certainly nothing said by the Supreme Court can be construed as meaning that the Act of Congress vesting jurisdiction solely in a three-judge court under those circumstances can be ignored so as to permit a single District Judge, acting alone, to declare the provisions of a state constitution and statute violative of the federal Constitution and to grant an injunction, no matter how plainly such conflict may appear in the light of other Supreme Court decisions. It is our view that the recent decisions of the Supreme Court belong in the realm of stare decisis, but not of res judicata, in subsequent cases involving the same issues; for the Act of Congress depriving a District Court of one judge of the power to issue such an injunction requires that it be done only by the statutory court.

Further, it seems likely that, in such a case as the one before us, plaintiff is bound to invoke the jurisdiction and procedure which Congress laid down in the statute. In those cases specifically decided on the merits by it, the Supreme Court has committed to the District Judges the responsibility of enforcing...