BOARD OF SUPERVISORS OF LA. STATE U., ETC. v. Tureaud

• Decision Date: 23 August 1955
• Docket Number: No. 15540.,15540.
• Citation: 225 F.2d 434
• 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

225 F.2d 434 (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, Appellee.

No. 15540.

United States Court of Appeals Fifth Circuit.

August 23, 1955.

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. Leblanc, Attorney General 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., 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., and Thurgood Marshall, New York City, for appellee.

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

RIVES, Circuit Judge.

As in the Delaware case, Gebhart v. Belton, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; (Brown v. Board of Education), 349 U.S. 294, 75 S.Ct. 753; this case was based on the so-called "separate but equal" doctrine announced in Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L.Ed. 256. The district court treated the case as if it presented only fact issues involving no necessity for deciding the constitutionality of any provision of Louisiana law. Tureaud v. Board of Supervisors, etc., D.C., 116 F. Supp. 248. On first appeal, the majority of this Court, one judge dissenting, held that the district judge was without jurisdiction to hear and determine the application for injunction, and that a three judge court was required under Section 2281 of Title 28, United States Code. Board of Supervisors, etc. v. Tureaud, 5 Cir., 207 F.2d 807. The Supreme Court granted certiorari, vacated the judgment of this Court, and remanded the case to this Court, and remanded the case to this Court 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, 347 U.S. 971, 74 S.Ct. 784, 98 L.Ed. 1112; thereby, we think, necessarily holding that the matters for consideration and decision were within the jurisdiction of this Court and of the one-judge district court from which it came. This Court, therefore, remanded the case to the district court for consideration in the light of the Segregation Cases and conditions that now prevail. Though appellants insist otherwise in brief, the record does not disclose that upon remand any additional evidence was offered. The district court having theretofore made full findings of fact and conclusions of law, 116 F.Supp. 248, again restrained and enjoined the respondents, appellants, "pending the determination of this action, from refusing on account of race or color to admit the plaintiff, and any other Negro citizen of the state similarly qualified and situated, 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 the University."

In Gebhart v. Belton, supra 347 U.S. 483, 74 S.Ct. 688, the Supreme Court of the United States affirmed the judgment of the Supreme Court of Delaware based on the old so-called "separate but equal" doctrine. Under that precedent, we cannot do otherwise here.

We have carefully reviewed the questions of procedure and of fact raised by appellants, and in our opinion none of those questions have merit, nor require discussion. The judgment is therefore

Affirmed.

CAMERON, Circuit Judge.

I dissent.

RIVES, Circuit Judge.

I specially concur.

CAMERON, Circuit Judge (dissenting).

I think the judgment of the District Court should be reversed because it failed to obey the mandate of this court and the Supreme Court, because it failed to enter Findings of Fact and Conclusions of Law, and failed to require appellee to clarify his position so that the question of a Three-Judge Court could be intelligently passed upon.

I.

(a) One week after it had rendered its decision in the Segregation Cases¹ the Supreme Court entered a memorandum opinion² in the form of a judgment

in the case now before us reading as follows:³

"On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. Per Curiam: 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 349 U.S. at page 483 74 S.Ct. 686 and conditions that now prevail."⁴

The mandate from the Supreme Court to this court contained the same language as the judgment of the Supreme Court. After reciting the vacation of the judgment theretofore entered by this court, the mandate contained these words:

"And it is further ordered that this cause be and same is hereby remanded to the United States Court of Appeals for the Fifth Circuit for consideration in the light of the Seggregation Cases decided May 17, 1954, Brown v. Board of Education, etc., and conditions that now prevail."

This court thereupon remanded the case to the District Court, using the identical language in the mandate.

The District Court, properly constituted⁵, was, therefore, "commanded" to consider the case sent back to it "in the light of * * * conditions that now prevail". The District Court did not comply with that mandate, but ignored it. That Court merely heard the legal argument on the motion to reinstate the injunction, addressed obviously to the number of judges which should constitute the court, took it under advisement and sustained it without receiving or considering any evidence at all.

The majority opinion seems to sanction that procedure, citing the Gebhart case⁶ as the basis therefor. I cannot follow that reasoning. If the Supreme Court had intended that appellee should be admitted to L.S.U.⁷ without further hearing, it would logically have reversed our judgment and entered an order reinstating the judgment of the District Court which had ordered such admission.

But it did not do that. Instead, it ordered a consideration of appellee's case "in the light of conditions that now prevail". To approve what the court below did is to treat that language as if it had not been used. That could be done only upon the assumption that the most vital provision in the Supreme Court's order was the product of inadvertence. Since we used the same words in our mandate to the court below we would convict this court also of inserting words in a solemn legal document which were entirely devoid of meaning or significance.

(b) The motion to reinstate the preliminary injunction did not assign any grounds and did not attach any affidavits

or refer to any testimony which had been or was being served under the Rules of Procedure, 28 U.S.C., and contained only this language: "Plaintiff * * * moves the court to reinstate its temporary or preliminary injunction issued herein against the defendants on September 11, 1953".

The defendants (appellants) filed an elaborate opposition to the granting of the motion, and the parties proceeded to argue it without any testimony at all, and the court entered an order reinstating the preliminary injunction in these words:

"This cause came on at a former date to be heard on the motion of the plaintiff to reinstate the preliminary injunction issued herein on September 11, 1953, and was argued by counsel for the respective parties and submitted, when the court took time to consider;

"Now, on due consideration thereof, it is ordered by the court that the motion of the plaintiff to reinstate the preliminary injunction issued herein on September 11, 1953 be and the same is hereby granted."

It is clear that the District Court did not hear any evidence and did not give consideration to, or make any finding in response to, the order and mandate of the Supreme Court and the mandate of this Court that it consider the case in the light of "conditions that now prevail".

The majority opinion mentions that the record does not reflect that appellants introduced any evidence on the motion before the District Court. Through their counsel they stated in their briefs and in oral argument before this court that they offered to introduce evidence and asked to be permitted the opportunity to introduce evidence on that subject. This statement was not denied by appellee, and there is no reason that it should be questioned. The fact is that the handling of the case by the District Court shows that it was handled as if a matter of law only was involved, no reporter was present, and none of the proceedings were taken down or transcribed. It is not conceived that the District Court could escape the duty to consider "conditions that now prevail" on so technical a ground as that mentioned in the majority opinion. The order of the Supreme Court and its mandate made it clear that it was introducing an entirely new ingredient into the case and was commanding that the District Court consider evidence with respect to it. The District Court had no jurisdiction to dispose of the case in any manner except in strict obedience to the command of the Supreme Court and of this court.⁸

Moreover, the position taken in the majority opinion which implies that appellants should not be heard because they failed to introduce evidence before the District Court cannot find support in the Rules of Procedure. If the case is to be considered on so technical a...