BOARD OF SUPERVISORS, ETC. v. Tureaud

• Decision Date: 06 January 1956
• Docket Number: No. 15540.,15540.
• Citation: 228 F.2d 895
• 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, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

228 F.2d 895 (1956)

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, Appellee.

No. 15540.

United States Court of Appeals Fifth Circuit.

January 6, 1956.

W. Scott Wilkinson, Shreveport, La., L. H. Perez, New Orleans, La., L. W. Brooks, C. V. Porter, J. R. Fuller, 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., 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., Baton Rouge, La., H. C. Sevier, Tallulah, La., A. J. Shepard, Jr., Lake Charles, La., Grove Stafford, Alexandria, La., Oliver Stockwell, Lake Charles, La., Wood H. Thompson, Monroe, La., Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., Wilkinson, Lewis & Wilkinson, Shreveport, La., of counsel, for appellants.

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

Before HUTCHESON, Chief Judge, and BORAH, RIVES, TUTTLE, CAMERON, JONES and BROWN, Circuit Judges.

PER CURIAM.

On August 23, 1955, a division of this court composed of Judges Rives and Cameron, Circuit Judges, and Dawkins, District Judge, Judge Cameron dissenting, affirmed the order of the district court entered March 30, 1955,¹ reinstating the preliminary injunction theretofore issued on Sept. 11, 1953.

Upon appellant's petition for rehearing, however, the court, on October 26th, Judge Rives dissenting, entered an order² 5 Cir., 226 F.2d 714, granting a rehearing and setting aside the August 23rd order, 5 Cir., 225 F.2d 434.

On November 8, 1955, the full court ordered that "The cause be, and it is hereby, submitted to the court en banc, on the record and briefs now on file and such additional briefs as may be filed, without oral argument".

Thereafter, the parties having filed supplemental briefs and the court, having become fully advised in the premises, has concluded: that, for the reasons stated in the majority and concurring opinions of the court dated August 23, 1955,³ the court correctly decided that the order appealed from should be affirmed, and that for the same reasons the majority, in its opinion and order of October 26, 1955, setting aside the order of affirmance, erred.

The order of October 26, 1955 is, therefore, vacated and set aside, and the order of August 23, 1955, is hereby and herewith reinstated and made the judgment of this court, and the cause is remanded to the district court for further and not inconsistent proceedings including its disposition on the merits.

CAMERON, Circuit Judge (dissenting).

The supplemental briefs filed by attorneys for the litigants upon the rehearing before the Court en banc have revealed that the case has become moot and should be dismissed. Appellee, Alexander Pierre Tureaud, Jr., asked for and obtained in the District Court an order enjoining appellants, "from refusing on account of race or color to admit the plaintiff * * * to the Junior Division of Louisiana State University and Agricultural and Mechanical College for the purpose of pursuing the combined arts and sciences and law course offered by that university". Emphasis supplied. This order was entered September 11, 1953, and the one now before us for review entered March 30, 1955 merely reinstated it.

The unchallenged showing now made before us is that appellee made written application for admission to L.S.U. for the summer session beginning June 6, 1955 to pursue work leading to a major in education. The registrar advised him that the court order limited his enrollment to the combination Liberal Arts-Law curriculum. At the beginning of the fall semester, 1955, appellee, accompanied by his father and next friend, went back to L.S.U. and the registrar and the dean of the College of Arts and Sciences worked out for him a program of studies in this curriculum. Appellee was advised that the order of court under which he was seeking admission did not admit him to undergraduate work in the College of Education. He and his father departed, taking entrance application blanks with them, and promising to advise within a day or two whether appellee would enroll in the Liberal Arts-Law course as covered by the injunction. But they did not return. Appellee instead enrolled in the College of Education in Xavier University and has remained there during the entire interim. It being uncontroverted that appellee has not sought to enforce or bring himself within the order of the District Court now before us but has abandoned it, the controversy before us is moot and without substance.

This being true, we have no choice but to reverse the judgment of the District Court and remand the case for dismissal. The rule has been firmly established by the Supreme Court in a long line of cases and is thus stated in United States v. Munsingwear, Inc., 1950, 340 U.S. 36, 39-40, 71 S.Ct. 104, 106, 95 L.Ed. 36, citing more than a score of its former decisions:

"The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss. That was said in Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 205, 81 L.Ed. 178, to be the `duty of the appellate court\'. That procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance. When that procedure is followed, the rights of all parties are preserved; * * *."¹

Nor is our duty to reverse for dismissal of the complaint vitiated by appellee's efforts to clothe the proceeding with the trappings of a class action. It is true that appellee does allege in the complaint that he sues for all Negroes similarly situated, and almost every paragraph of the complaint repeats this thought. But nowhere is it stated in the complaint that there is a class whose situation is similar to that of appellee, and no effort is made to define that class, its number, its location, the points of similarity either in law or in fact between appellee's status and that of the class, or any of the details necessary to enable the Court to determine for itself whether there is truly a class and that the appellee fairly represents that class. In the opinion rendered by this Court in this case October 26, 1955, 226 F.2d 714, 719, we said:

"In this record, there is no proof to sustain the allegation that there are many others besides complainant, too numerous to make parties, having the identical status and possessing the necessary qualifications for admission to the same college and courses. Certainly there can be no such all-inclusive injunction covering all members of an alleged class without proof that the others desire to be so represented in substantial numbers or have requested plaintiff so to represent them. Such facts cannot be assumed. 3 Moore\'s Federal Practice, 3418, et seq.; Rule 23, Fed.Rules Civ.Proc.; Weeks v. Bareco Oil Co., 7 Cir., 125 F.2d 84."

Moore deals fully with this question in his treatise at the point referred to. The rule is well stated in these separated excerpts from 3 Moore's Federal Practice, pages 3422 and 3423:

"Neither the multiplicity of parties, nor the inexpediency nor the inconvenience of bringing parties before the court will, in themselves, justify the class suit; they are, however, matters which evidence impracticability. A reading of the cases convinces one that whether a number is so large that it would be impracticable to join all the parties is dependent not upon any arbitrary limit, but rather upon the circumstances surrounding the case; and there must be a positive showing of such circumstances. * * * "An action, of course, is not a class suit merely because it is designated as such in the pleading; whether it is or not depends upon the attending facts. But the complaint * * * should allege the existence of the necessary facts * * *."² Emphasis added.

Appellee's right to proceed as representative of others in a class action was challenged by appellant and, as stated in the above quotation, no evidence was offered to sustain even the inadequate averments of the complaint. Those averments standing alone were insufficient to make out even a prima facie showing of appellee's right to represent the supposed class,³ and in the absence of evidence there was nothing on which the Court below could base a holding that the class action was proper.

The wisdom of the rule limiting class actions to those in which the pleadings and the proof point out the members of the class, their location, the character of the common interest between the class and the litigant who essays to speak for it, and similar details, is well illustrated by this case. While no member of the class sought to intervene as a party or to give any testimony, the rights of the supposed class would, if this were a legitimate class action, be entitled to protection by this Court. At the present juncture of these proceedings, the appellee has no standing before the Court for the reasons above set forth, and the case stands before us for decision, if at all, without the presence of any member of the class whose interests we would be bound to protect. That protection could be given only if the class is so clearly pointed out in the pleadings and the proof that this Court could, by proper notice, bring in some of its members to carry on the litigation if that course should be found desirable. There is nothing in this entire record which would enable us to proceed effectively or intelligently in vouchsafing that protection.

The cogent...