Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v Ludley Brief on Behalf of Appellants

    IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 16, 854

BOARD OF SUPERVISORS OF LOUISIANA STATE 
UNIVERSITY & AGRICULTURAL & MECHANICAL 

COLLEGE, ET AL.,
Appellants,

versus

ARNEASE LUDLEY,
Appellee.

BRIEF ON BEHALF OF APPELLANTS.

JACK P. F. GREMILLION,
Attorney General,

State of Louisiana,
Baton Rouge, Louisiana;

GEORGE M. PONDER,
First Assistant Attorney General;

WILLIAM P. SCHULER,
Assistant Attorney General;

LAURANCE W. BROOKS,
Louisiana National Bank Bldg., 

Baton Rouge, Louisiana,

Attorneys for Appellants.



SUBJECT INDEX.

STATEMENT OF THE CASE.........................................  1

SPECIFICATION OF ERRORS.................................  4

ARGUMENT:

This is a suit between a state and some of its 
citizens and the United States District Court 
is without jurisdiction..............    5

A suit to restrain the enforcement of a state 
statute on grounds of unconstitutionality is 
not within the province of a single-judge 
court.......................................................................  12

The Certificate of Eligibility Law is constitution­
al on its face and administered in a constitu­
tional manner......................................................  18

That evidence used by the Court to reach its de­
cision was inadmissable......................    27

The intervention of the three new named plain­
tiffs should not have been allowed and was 
not done in the proper manner..------ ------------ 28

Appellants were denied their right to a hearing
when the Court allowed the intervention.......  81

Plaintiffs should not have been granted a pre­
liminary injunction without furnishing se­
curity ......     81

Page



I I

SUBJECT INDEX— (Continued).

CONCLUSION ...................................................................  32

CERTIFICATE OF SERVICE.... ......................... .......... 33

APPENDIX:
Statutes involved................................ ......... ............. 34

AUTHORITIES CITED.

California Water Service Co. v. City of Redding, 304
U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323; (1938) 15, 17

Caminetti v. United States, 242 U.S. 470, 61 L.Ed.
442, 37 S.Ct. 192 (1917)................................................  22

Chatz v. Freeman et al., 204 F. 2d 764, (C.C.A. 7,
1953) .....................       32

Chisholm v. Georgia, 2 U.S. 2 Dali. 419 (1:440)
1793) ..... ................................................. ......... ............... .. 5

Cook v. Davis, 178 F. 2d 595 (C.C.A., 5, 1950)_________ _ 29

Davis v. County School Board, 142 F. Supp. 616,
(D.C., E.D. Va., 1956)_________ ___________ ___ 15, 25

Davis v. Schnell, 81 F. Supp. 872, (D.C., S.D., Ala.,
1949) __        22

Ex Parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84
L.Ed. 1249 (1940).........................................................  15

Ex Parte Buder, 271 U.S. 461, 48 S.Ct. 557, 70 L.
Ed. 1036 (1926).........................      15

Ex Parte Collett, 337 U.S. 55, 93 L.Ed. 1207, 69 S.Ct.
944 (1949).........................................................................  22

Page



Ex Parte Hobbs, 280 U.S. 168, 50 S.Ct. 83, 74 L. Ed.
353 (1929)............................. ........................ ..................  15

Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L. Ed.
152 (1933)................................................................... 15, 16

Ex Parte Young, 209 U.S. 123, 28 S.Ct., 441, 52 L.Ed.
714 (1908)............................................... ..................  9, 12

George Van Camp & Sons Co. v. American Can Co.,
278, U.S. 245, 49 S.Ct. 112, 73 L.Ed. 311 (1929)...... 21

Georgia R. R. & Banking Co. v. Redwine, 342 U. S.
299, 72 S.Ct. 321, 96 L.Ed. 335, (1952)........................  9

Hamilton v. Rathbone, 175 U.S. 414, 419, 421, 20 S.Ct.
155, 158, 44 L.Ed. 219 (1899).....................................  21

Hans v. Louisiana, 134 U.S. 1, 12, 13, 14, 10 S.Ct. 504,
33 L.Ed. 842, (1890)........................................    6

Harkness v. Irion, 278 U.S. 92, 49 S.Ct. 40, 73 L.Ed.
198 (1928)..........................................      15

Holahan v. Holahan, 11 Fed. Rules Serv. 65c.l, Case
1, 8 F.R.D. 221....................................................   32

Hopkins et al. v. Wallin et al., 179 F 2d 137 (C.C.A.
3, 1949) ....... .....................................................................  32

Litchfield v. Bridgeport, 103 Conn. 565, 131 A. 560
(1925) ..................................................................................  28

Marchese v. United States, 126 F. 2d 671 (C.C.A.,
5, 1942)...................................................      28

Orleans Parish School Board v. Bush, 242 F. 2d 156
(C.C.A. 5, 1 9 5 7 ) - - - .............................. - ..............  22, 25

AUTHORITIES CITED— (Continued).
Page



IV

Owens v. Paramount Production, Inc., 5 F.R. Serv.
15a 31 case 1; 41 F. Supp. 557 (D.C.S.D. Cal,
1941) ..... ...........................................................................  29

Packard Motor Car Co. v. National Labor Relations 
Board, 330 U.S. 485, 91 L.Ed. 1040, 67 S.Ct.
789 (1947).... .....................................................................  22

Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480,
85 L.Ed. 800 (1941)..........................................................  15

Russell Motor Car Co. v. United States, 261 U.S.
514, 43 S.Ct. 428, 67 L.Ed. 778 (1923)......................._. 21

State v. Arkansas-Louisiana Gas Co., 78 So. 2d 825,
227 La. 179 (S.Ct., La., 1955)...................... ........ ........  22

State ex rel Noe v. Knop, 190 So. 135. (La. App.,
1938) ..........     22

State v. Maestri, 5 So. 2d 499, 199 La. 49 (S.Ct., La.,
1941) ..............     22

Third District Land Company v. Toka, 170 So. 793
(La. App., 1936)—..... ..................... .............. ................ 27

United States v. Barnes, 222 U.S. 513, 518, 519, 32
S.Ct. 117, 56 L.Ed. 291-293 (1912).............................  22

United States v. Hartwell, 6 Wall 385, 18 L.Ed. 830..........  21

Yick Wo v. Hopkins, 118 U.S. 356, 366, 30 L.Ed. 220
(1886) ...................................................................... ........  24

STATUTES CITED.

UNITED STATES CONSTITUTION:

Amendment 11...............................................    6

AUTHORITIES CITED—  (Continued).
Page



V

LOUISIANA CONSTITUTION:

Article 19, Section 26...................................................... 10
Article 12, Section 7...................................... ..................  11

STATUTES:

United States:

28 U. S. Code 2281-2284....... ....................................  2, 18
32 Stat. 823 (1903).... .....................................................  13
36 Stat. 1087, 1162 (1911).........................-.............- - -  14

Louisiana:

Act. 15 of 1956 (R.S. 17:2131-2135) ...... ......... 1, 12, 18
Act 249 of 1956 (R.S. 17:443)..... .....................  1, 12, 21
Act 556 of 1954............................................... .................  23
La. R.S. 17:1451.............-...............-............................. - 11
La. R.S. 17:1452............ ............................... .......... ----- H
La. R.S. 17:1471...... .........- .....- .....- - ................. .......  H
La. R.S. 17:1472....... .............. ...................... .................  11

MISCELLANEOUS:

Federal Rules of Civil Procedure:

Rule 2 4 (c)...... - .......................- ......-............................... 29
Rule 65 (a )_____ ___- ........................ .............................-  30
Rule 6 5 (c ).........................................................................  30

American Jurisprudence, Vol. 55, p. 10................................ 20

Corpus Juris Secundum; Vol. 14, p. 1359............................  20

Corpus Juris, Vol. 59, p. 1017............................... ..................  27

STATUTES CITED— (Continued).
Page



VI

Cyclopedia of Federal Procedure:

Vol. 7, Sec. 24.36..............................................................  29
Vol. 7, Sec. 73.59-..... ...................................................... 30
Vol. 14, Sec. 73.30........ .................................................... 10
Vol. 14, Sec. 73.57..............................................................  31
Vol. 14, Sec. 73.55...... .......................................................  32

81 Federalist....... ............._....................................................... 6

41 Harvard Law Review 623 (1928).....................................  14

Hutcheson, A Case for Three Judges, 47 Harvard
Law Review 795 (1934)............................ ....................  14

Pogue, State Determination of State Law......... .................  14

Moore’s Federal Practice, Vol. 3, Secs. 104.01 and
107.02 .............................................................. ............. . 14

Moore’s Federal Practice, Vol. 7, Sec. 65.04 (3 )................  30

STATUTES CITED— (Continued).
Page



IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 10, 854

BOARD OF SUPERVISORS OF LOUISIANA STATE 
UNIVERSITY & AGRICULTURAL & MECHANICAL 

COLLEGE, ET AL.,
Appellants,

versus

ARNEASE LUDLEY,
Appellee.

BRIEF ON BEHALF OF APPELLANTS.

STATEMENT OF THE CASE

Arnease Ludley filed a complaint in the United 
States District Court for the Eastern District of Louisiana, 
on January 17, 1957, against the Board of Supervisors of 
Louisiana State University & Agricultural & Mechanical 
College, the individual members of the board, the president 
of this university, Troy H. Middleton, and R. J. Russell, 
Dean of the Graduate School, erroneously referred to as Dean 
of the University, seeking a temporary restraining order and 
preliminary and final injunctions to restrain the enforce­
ment by officers of the State of Louisiana, of certain Louisi­
ana statutes, to-wit: Louisiana Revised Statutes 17:443 and 
Revised Statutes 17:2131-2185 inclusive. In this complaint 
she alleged that the aforesaid statutes were contrary to the



2

Fourteenth Amendment of the United States Constitution in 
that said statutes deprived her and others simularly situated 
of rights, privileges and immunities secured by the Constitu­
tion and Laws of the United States, to-w it: Rights secured by 
the equal protection and due process clauses of the Fourteenth 
Amendment to the United States Constitution and Title 42, 
U.S.C., Section 1981; wherefore she prayed that a temporary 
restraining order issue enjoining Defendants from denying 
her the right to register at L.S.U. She further prayed that 
a three judge court be convened as required by Title 28, 
U.S.C., Sec. 2281-2284, and that a hearing be held to deter­
mine whether a preliminary and permanent injunction should 
issue, enjoining defendants and their agents from refusing 
plaintiff’s registration for the forth coming semester at 
L.S.U. (Tr. p. 2-9) and that Louisiana Revised Statutes 17:- 
2131-2135 (Act 15 of 1956) and Louisiana Revised Statutes 
17:443 (Act 249 of 1956) be found in violation of due process 
and equal protection clauses of the Fourteenth Amendment 
of the United States Constitution.

On January 17, 1957, District Judge Herbert W. 
Christenberry issued a temporary restraining order enjoining 
defendants from refusing to register plaintiff and others 
simularily situated at Louisiana State University until the 
hearing on said application for interlocutory injunction, and 
this temporary restraining order was extended from time to 
time until judgment on the interlocutory injunction. (Tr. 
pp. 16, 51, 100, 105, 106, 107, 108, 109, 112).

A hearing on the interlocutory injunction was had 
on February 8, 1957, at which time appellants filed a motion 
to dismiss and alternatively for a stay of proceedings, based 
on lack of jurisdiction of the court and the plaintiff’s failure 
to state a claim upon which relief could be granted and sug­
gested to the court that this matter should be held in abey­



3

ance until such time as the courts of Louisiana had time to 
pass upon the validity of the state’s statutes attacked herein. 
(Tr. pp. 18, 19, 20).

Appellants then filed their answer in the matter 
denying that the state statutes in question were contrary to 
or in violation of plaintiff’s constitutional rights, and alleged 
further that plaintiff had failed to meet scholastic require­
ments which would qualify her for readmission in the Uni­
versity. (Tr. pp. 30-36).

Appellants, in support of their position, filed affi­
davits of university officials which showed conclusively that 
the named plaintiff herein had failed to meet the scholastic 
standards of the university, and further that the university 
had applied the Certificate of Eligibility requirement uni­
formly to white and negro students seeking admission for 
the Spring Semester of 1957. As a matter of fact, affidavit 
showed that in excess of 150 white students had been denied 
admission to the university because of inability to produce 
required Eligibility Certificate. (Tr. pp. 22-30, 37-48)

At this point the Court consolidated this case with 
the cases of Bailey v. Louisiana State Board of Education 
et al. and Lark v. Louisiana State Board of Education, et 
al. (Tr. p. 49)

The Court heard argument of counsel on this and 
consolidated cases and reserved judgment thereon allowing 
both sides the opportunity to file memoranda in support of 
their position within twenty (20) days. (Tr. p. 50)

On February 18, 1957, Audrey C. Robertson, Alvery 
L. Darnum and Ruth Mae Johnson filed a motion to intervene 
as plaintiffs in this suit. (Tr. p. 98)



4

Appellants on February 27, 1957, filed an opposi­
tion to the intervention (Tr. pp. 101-102), however, on April 
15, the Court allowed the intervention of the new plaintiffs 
(Tr. p. 113).

On April 15, 1957, the Court in its opinion held 
that Acts 249 and 15 of 1956 were unconstitutional in that 
they deprived plaintiffs of their constitutional guarantees. 
(Tr. pp. 114-121).

In conformity with said opinion, the Court issued a 
temporary injunction restraining defendants from refusing to 
admit any qualified applicant to Louisiana State University 
for the purpose of pursuing a course of study offered by that 
university because of failure of the applicant to present the 
Certificate of Eligibility provided in Louisiana Revised Stat­
utes 17:2131-2135. Application for new trial and rehearing 
was filed on behalf of the appellants predicated on ten separ­
ate allegations of error on the part of the District Court. 
(Tr. pp. 123-126) This motion was denied on May 20, 1957 
(Tr. p. 127).

Having exhausted all remedies before the lower 
court, appellants, on May 29, 1957, filed a notice of appeal 
(Tr. p. 128), and filed the necessary bond for costs (Tr. pp. 
130-133).

SPECIFICATION OF ERRORS

The Lower Court erred in holding:

I. That this was not a suit against the State of 
Louisiana, and therefore was within the Fed­
eral judicial authority.

II. That, since there was no serious constitutional 
question, a three-judge court did not have to be 
convened.



5

III. That the Louisiana Eligibility Law was uncon­
stitutional.

IV. That the evidence used to determine legislative 
intent was admissable.

V. That the three new named plaintiffs should 
be allowed to intervene after the only named 
plaintiff was shown not to be eligible to bring 
this suit.

VI. That appellants were not deprived of a hearing 
when the intervention was allowed after the 
hearing.

VII. That plaintiffs were entitled to a preliminary 
injunction even though they filed no security 
bond.

THE UNITED STATES DISTRICT COURT IS WITHOUT 
JURISDICTION TO MAINTAIN A SUIT BETWEEN 

A STATE AND ONE OF ITS CITIZENS.

The District Court erroneously overruled the motion 
to dismiss and plea to the jurisdiction filed on behalf of 
the State of Louisiana and all defendants. Said motion was 
based upon the fact that this in effect was a suit against 
the State of Louisiana and was predicated upon the firmly 
established precept of law that a United States Court cannot 
entertain jurisdiction of a suit brought against a state by any 
individual without the consent of such State.

The original enacters of the United States Constitu­
tion believed that the sovereign states were immune from 
suit.

81 FEDERALIST
The first federal inroad to this basic concept of law 

was made by the Supreme Court of the United States in 
Chisholm v. Georgia, 2 U. S. 2 Dali. 419 [1:440] (1793)



6

This decision created such a shock of surprise 
throughout the country that, at the first meeting of Congress 
thereafter, the Eleventh Amendment to the Consitution was 
almost unanimously proposed, and was in due course adopted 
by the Legislatures of the states. This amendment, which 
provides as follows, expressing the will of the ultimate sover­
eignty of the whole country, superior to all legislatures and all 
courts, actually reversed the decision of the Supreme Court:

“ The Judicial power of the United States shall not 
be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United 
States by citizens of another State or by citizens or 
subjects of any foreign state.”

In the case of Hans v. Louisiana, 134 U. S. 1, 12, 13, 
14, 10 S. Ct. 504, 33 L. Ed. 842, (1890), Mr. Justice Bradley 
discussed the intent of some of the strong advocates of adop­
tion of the Consitution, with respect to a state’s immunity 
to suit:

“ Looking back from our present standpoint at the 
decision in Chisholm v. Georgia, we do not greatly 
wonder at the effect which it had upon the country.
Any such power as that of authorizing the federal 
judiciary to entertain suits by individuals against the 
States had been expressly disclaimed, and even re­
sented, by the great defenders of the Constitution 
whilst it was on its trial before the American people.
As some of their utterances are directly pertinent to 
the question now under consideration, we deem it 
proper to quote them.

“ The 81st number of the ‘Federalist’, written by 
Hamilton, has the following profound remarks:



7

“ 'It is inherent in the nature of sovereignty not to 
be amendable to the suit of an individual without its 
consent. This is the general sense and the general 
practice of mankind; and the exemption, as one of 
the attributes of sovereignty, is now enjoyed by the 
Government of every state in the union. Unless, 
therefore, there is a surrender of this immunity in 
the plan of the convention, it will remain with the 
States, and the danger intimated must be merely 
ideal.’

*  *  *

“ The obnoxious clause to which Hamilton’s argument 
was directed, and which was the ground of the ob­
jections which he so forcibly met, was that which 
declared that ‘the judicial power shall extend to all 
. . . controversies between a State and citizens of 
another State,. . . and between a State and For­
eign states, citizens or subjects.’ It was argued by 
the opponents of the Constitution that this clause 
would authorize jurisdiction to be given to the fed­
eral courts to entertain suits against a State brought 
by the citizens of another State, or of a foreign 
state. Adhering to the mere letter, it might be so; 
and so, in fact, the supreme court held in Chisholm 
v. Georgia; but looking at the subject as Hamilton 
did, and as Mr. Justice Iredell did, in the light of 
history and experience and the established order of 
things, the views of the latter were clearly right,— as 
the people of the United States in their sovereign 
capacity subsequently decided.
“But Hamilton was not alone in protesting against 
the construction put upon the Constitution by its 
opponents. In the Virginia convention the same ob­
jections were raised by George Mason and Patrick



8

Henry, and were met by Madison and Marshall as 
follows. Madison said: ‘Its jurisdiction’ (the federal 
jurisdiction) ‘in controversies between a State and 
citizens of another State is much objected to, and 
perhaps without reason. It is not in the power of 
individuals to call any State into court. The only 
operation it can have is that, if a State should wish 
to bring a suit against a citizen, it must be brought 
before the federal court. This will give satisfaction 
to individuals, as it will prevent citizens on whom 
a State may have a claim being dissatisfied with the 
state courts. . . It appears to me that this (clause) 
can have no operation but his—to give a citizen a 
right to be heard in the federal courts; and if a 
State should condescend to be a party, this court 
may take cognizance of it.’ 3 Elliot’s Debates, 533. 
Marshall, in answer to the same objection, said: 
‘with respect to disputes between a State and the 
citizens of another State, its jurisdiction has been 
decried with unusual vehemence. I hope that no 
gentleman will think that a State will be called at 
the bar of the federal court. . . It is not rational to 
suppose that the sovereign power should be dragged 
before a court. The intent is to enable States to re­
cover claims of individuals residing in other States 
. . . But, say they, there will be partiality in it if 
a State cannot be a defendant— if an individual can­
not proceed to obtain judgment against a State, 
though he may be sued by a State. It is necessary 
to be so, and cannot be avoided. I see a difficulty 
in making a State defendant which does not prevent 
its being plaintiff.’ ”  Id. 555

In the same opinion Mr. Justice Bradley held that 
the Eleventh Amendment applies equally to suits brought



9

against the state by one of its own citizens by stating:
. . Can we suppose that, when the 11th Amend­

ment was adopted, it was understood to be left open 
for citizens of a State to sue their own State in the 
federal courts, whilst the idea of suits by citizens 
of other States, of foreign states, was indignantly 
repelled? Suppose that Congress, when proposing 
the 11th Amendment, had appended to it a proviso 
that nothing therein contained should prevent a 
State from being sued by its own citizens in cases 
arising under the Constitution or laws of the United 
States: can we imagine that it would have been 
adopted by the States ? The supposition that it would 
is almost an absurdity on its face.

“ The truth is, that the cognizance of suits and 
actions unknown to the law, and forbidden by the 
law, was not contemplated by the Constitution when 
establishing the judicial power of the United 
States. . .
“ This has been so often laid down and acknowledged 
by courts and jurists that it is hardly necessary to 
be formally asserted. . . .”

The next judicial inroad to the fundamental prin­
cipal of immunity of the state from suit occurred when the 
Supreme Court decided the case of Ex Parte Young, 209 
U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).

In that decision, recently cited with approval in 
Georgia R. R. & Banking Co. v. Redwine 342 U. S. 299, 
72 S. Ct. 321, 96 L. Ed 335 (1952), the court held that a 
state officer could be enjoined from taking or instituting 
any action or proceeding to enforce the penalties and remedies 
set forth in an unconstitutional state act.



10

This decision, however, laid down at least one 
restraint on the power of the Federal Court to declare un­
constitutional statutes of a state. This limitation is that the 
defendants in a suit, to test the constitutionality of an act, 
must be persons who are charged with the enforcement of 
the act. The court so stated in the following language.:

“ In making an officer of the state a party defendant 
in a suit to enjoin the enforcement of an act alleged 
to be unconstitutional it is plain that such officer 
must have some connection with the enforcement of 
the act, or else it is merely making him a party as 
a representative of the state, and thereby attempting 
to make the state a party.”

This doctrine has been recognized by the text books 
dealing with Federal Practice. The Cyclopedia of Federal 
Procedure, Third Edition, Volume 14, Section 73:30 states 
it as follows:

“ If a suit is to enjoin a state officer from enforcing 
a state statute on the ground that it violates the 
Federal Constitution, the officer or officers con­
nected with the enforcement of the statute should be 
joined as defendants, to preclude objection that the 
suit is one against the state. But only those charged 
with the enforcement of the statute should be joined 
as defendants.”

It is most appropriate at this time to look at the 
facts revealed in the case at bar in relation to the foregoing 
principles of law. The State of Louisiana by constitutional 
amendment specifically withdrew the consent of the state 
to a suit against the Board of Supervisors of Louisiana 
State University. Article XIX, Section 26 reads as follows:

“ Section 26. The following named commissions, 
boards, bodies or municipal corporations are and



11

shall be considered special agencies of the State of 
Louisiana:

* * *

“ (6) The Board of Supervisors of Louisiana State 
University and Agricultural and Mechanical College,

ijc

“ The consent of the State of Louisiana to suits or 
legal proceedings against any of the above listed 
special agencies, (however heretofore given) is 
hereby expressly withdrawn and no such suit or pro­
ceeding shall be permitted except as provided in 
this section. . .

The plaintiff herein saw fit to sue the Board of 
Supervisors of the university, the individual members thereof, 
the President of the University and the Dean of the Graduate 
School.

The Board of Supervisors of Louisiana State Uni­
versity Agricultural & Mechanical College is a constitutional 
body created by Louisiana Constitution of 1921, Art. 12, 
Sec. 7. The more specific powers and duties of this body 
are set forth in R.S. 17:1451 and 1452. The board in turn 
has the right to appoint the President of the University 
(R.S. 17:1471) and such administrative officers as neces­
sary (R.S. 17:1472).

The President of the University has the duty of 
executing the decision and rules of the board. (R.S. 17:1471)

One of the administrative officers of the university 
is the Registrar, Albert Clary. (Tr. pp. 39-41). This official 
is charged with the duty of registering students who meet 
the qualifications established. Even though this official is 
the one primarily charged with the duty of enforcing Act



12

15 of 1956, he is one of the few university officials not 
made defendant in this suit. The defendants in the suit are 
not charged with the duty of admitting or denying admission 
to any student. The plaintiff herein chose to ignore in her 
suit the one party who could afford her relief and instead 
sought to bring into court state officials not charged with 
the enforcement of Act 15 of 1956. This can result only in 
this being a prohibited suit against the State of Louisiana.

The other act attacked by plaintiff is Act 249 of 
1956. This act prohibits certain actions on behalf of perma­
nent teachers of the State of Louisiana. This act clearly pro­
vides that it shall be enforced by the school board of the 
parish or city as the case may be. Not only do the defendants 
in this suit lack the power of enforcement of this statute, 
they do not have the remotest connection with the statute 
in any phase. There can be no doubt that under the rule 
set forth above, this is, clearly and unalterably, a suit 
brought against the State of Louisiana and thereby prohi­
bited by the 11th Amendment to the United States Constitu­
tion.

A  SINGLE JUDGE, UNITED STATES DISTRICT COURT 
IS WITHOUT JURISDICTION TO HEAR THE QUESTION 

OF CONSTITUTIONALITY OF A  STATE STATUTE 
WHERE INJUNCTIVE RELIEF IS REQUESTED.

In March of 1911 the Congress enacted laws which 
prohibited a single United States District Court Judge from 
exercising his power to grant injunctive relief when the 
constitutionality of a state statute is in question. Historically 
this statute was a direct result of a Supreme Court decision.

Prior to the case of Ex Parte Young, 209 U.S. 
123, 28 S. Ct., 441, 52 L.Ed. 714 (1908), the sole function of a



13

three-judge court was to entertain, under specified circum­
stances, equity suits arising under the Sherman Anti Trust 
Act and the Interstate Commerce Act. 32 Stat. 823 (1903). 
No thought had been given to the establishment of three- 
judge courts with jurisdiction over matters pertaining to in­
junctive relief sought against state action, as the general 
feeling prevailed that such actions were barred under the 
Eleventh Amendment. However, this opinion proved to be 
erroneous.

In Ex Parte Young, officers of the State of Minne­
sota attempted to enforce transportation rates established by 
the State Legislature, and stockholders of a railroad sought an 
injunction in a single-judge Federal Court against the en­
forcement of the statute on the grounds that it violated the 
federal constitution. The judge granted the injunction. The 
Attorney General of Minnesota refused, however, to obey the 
injunction, whereupon the Federal Court convicted him for 
contempt. In refusing the release of the Attorney General 
on habeas corpus, the United States Supreme Court upheld 
the jurisdiction of the Federal Court and set down the rule 
that notwithstanding the Eleventh Amendment which pro­
hibits individual suits against a state, federal courts, under 
appropriate circumstances, can issue injunctions against state 
officials seeking to enforce state statutes that violate the 
United States Constitution. Justice Harlan, in a strong dis­
senting opinion, pointed out that if the principles announced 
in the majority opinion became “ firmly established. . . .it 
would enable the subordinate Federal Courts to supervise 
and control the official action of the States as if they were 
‘dependencies’ or provinces.” 209 U. S. at 175. This feeling 
was more strongly echoed among the states. Since the Federal 
Courts did not wish to release all power over such injunctive 
relief, the protest of the states at being subjected to the pos­
sible abuse of such injunctive powers vested in a single federal



14

judge called for a compromise. Therefore, in 1911, Congress 
provided for three-judge courts, similar to the three-judge 
courts of today, with exclusive jurisdiction to entertain pe­
titions for injunctive relief against the enforcement by state 
officials of unconstitutional state statutes. (Act of March 
3, 1911, 36 Stat. 1087, 1162). The three-judge court device 
was adopted in the belief that the more careful consideration 
afforded each case when it was considered by three judges 
would minimize the possibility of arbitrary abuse of the 
injunctive power.

The major distinction between the 1911 three-judge 
courts and those as presently constituted is that the former 
were authorized to hear applications solely for interlocutory 
injunctions while the latter are authorized to entertain appli­
cations for permanent injunctions as well. Various amend­
ments have increased the jurisdiction of the three-judge 
court to include orders of state boards or commissions as 
well as state statutes; to include petitions for final as well as 
interlocutory injunctions; to add the analagous statute grant­
ing injunctive relief from the operation of unconstitutional 
federal statutes; and to perfect the method of direct appeal 
to the United States Supreme Court. For a detailed discussion 
of the history of these statutes as well as of the early case 
law construing them, see 3 MOORE, FEDERAL PRACTICE 
E, (1st ed. 1938) Secs. 104.01 and 107.02; Pogue, State 
Determination of State Law, 41 Harv. L. REV. 623 (1928) ; 
Hutcheson, A CASE FOR THREE JUDGES, 47 HARV. L. 
REV. 795 (1934).

The Supreme Court of the United States further 
limited the scope of the three-judge court by decreeing that 
the constitutional question presented to the court must be 
a substantial question of unconstitutionality. If such sub­
stantial constitutional question is not presented then there is 
no necessity of invoking the three-judge court.



15

Ex Parte Poresky, 290 U. S. 30, 54 S. Ct. 3, 78 L. Ed. 
152. (1933)

It would appear that a substantial constitutional 
question is not raised in the following instances:

(1) Where the question is whether an officer is 
exceeding the power granted to him.

Harkness v. Irion 278 U.S. 92, 49 S.Ct. 40, 73 
L.Ed. 198 (1928) ;
Phillips v. United States, 312 U.S. 246, 61 S.Ct.
480, 85 L. Ed. 800; (1941)
Ex Parte Bransford, 310 U.S. 354, 60 S.Ct.
947, 84 L.Ed. 1249 (1940).

(2) Where the plaintiff concedes the constitution­
ality of the statute.

Ex Parte Hobbs, 280 U.S. 168, 50 S.Ct. 83,
74 L.Ed. 353 (1929).

(3) Where the U.S. Supreme Court has previously 
declared the statute directly unconstitutional.

Davis v. County School Board, 142 F. Supp.
616. (D.C., E. D. Va., 1956)

(4) Where there is a question of interpretation of 
laws rather than a question of constitutionality.

Ex Parte Buder, 271 U.S. 461, 48 S.Ct. 557, 70 
L. Ed. 1036 (1926).

(5) Where there is no substantial claim of uncon­
stitutionality as a result of previous decisions.

California Water Service Company v. City of 
Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 
1323; (1938)

Without question the matter at bar does not fall 
into either of the first four classifications. Upon careful con­
sideration it is also evident that exception No. 5 is not appli­



16

cable in this case. In regards to this there has been a rather 
general trend for writers on the subject to say that a three- 
judge court is not necessary unless there is a substantial claim 
of constitutionality present. While this is true it could leave 
doubt in an area in which none exists. The actual test is 
not whether there is a serious test of constitutionality, but 
whether there is a serious test of unconstitutionality pre­
sent. Probably the landmark case on this question is the case 
of Ex Parte Poresky, 290 U. S. 30, 54 S. Ct. 3, 78 L.Ed. 152. 
(1933) in that case the Court definitely decided that 

where the claim that a statute was unconstitutional was 
obviously unsound there was no necessity of invoking a three- 
judge court. The court said on page 31:

“ The District Judge recognized the rule that if the 
court was warranted in taking jurisdiction and the 
case fell within § 266 of the Judicial Code, a single 
judge was not authorized to dismiss the complaint on 
the merits, whatever his opinion of the merits might 
be. Ex parte Northern Pacific Ry. Co., 280 U.S.
142, 144; Stratton v. St. Louis S. W. Ry. Co., 282 
U.S. 10, 15. But the provision requiring the presence 
of a court of three judges necessarily assumes that 
the District Court has jurisdiction. In the absence of 
diversity of citizenship, it is essential to jurisdiction 
that a substantial federal question should be pre­
sented. ‘A substantial claim of unconstitutionality 
is necessary for the application of § 262.’ Ex parte 
Buder, 271 U.S. 461, 467; Louisville & Nashville 
R. Co. v. Garrett, 231 U.S. 298, 304. That provisioi 
does not require three judges to pass upon this initial 
question of jurisdiction.
“ The existence of a substantial question of consti­
tutionality must be determined by the allegations of 
the bill of complaint. Mosher v. Phoenix, 287 U.S.



17

29, 30; Levering & Garrigues Co. v. Morrin, 289 
U. S. 103, 105. The question may be plainly unsub­
stantial, either because it is ‘obviously without merit’ 
or because ‘its unsoundness so clearly results from 
the previous decisions of this court as to foreclose 
the subject and leave no room for the inference that 
the question sought to be raised can be the subject 
of controversy.’ ”

Again in the case of California Water Service 
Company v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 
82 L.Ed. 1323, (1938) the Court decided that a three-judge 
court was not necessary because the statute involved had 
already been declared constitutional by the Supreme 
Court and, therefore, no serious question of unconstitution­
ality was raised. The Court stated as follows:

“We are of the opinion that these rulings were 
correct. We have held that § 266 of the Judicial 
Code does not apply unless there is a substantial 
claim of the unconstitutionality of a state statute or 
administrative order as there described. It is there­
fore the duty of a district judge, to whom an applica­
tion for an injunction restraining the enforcement of 
a state statute or order is made, to scrutinize the 
bill of complaint to ascertain whether a substantial 
federal question is presented, as otherwise the pro­
vision for the convening of a court of three judges 
is not applicable. Ex parte Buder, 271 U.S. 461, 467;
Ex parte Poresky, 290 U.S. 30. We think that a 
similar rule governs proceedings under § 3 of the 
Act of August 24, 1937, as to the participation of 
three judges in passing upon applications for in­
junctions restraining the enforcement of federal 
statutes upon the ground of constitutional invalidity.



18

Had the decisions in the cases of Alabama, Power 
Co, v. Ickes, supra, and of Duke Power Co. v. Green­
wood County, 302 U.S. 485, been rendered prior to 
the filing- of the bill of complaint in the instant 
case, no substantial federal question would have 
been presented. The lack of substantiality in a fed­
eral question may appear either because it is ob­
viously without merit or because its unsoundness so 
clearly results from the previous decisions of this 
Court as to foreclose the subject. . . ”

In view of the above it is clear that prior court 
decisions can only obviate the necessity for invoking a three- 
judge court when the prior decisions have left no doubt 
that the statute is constitutional and there can be no pos­
sibility of an injunction issuing against the enforcement 
of such statute. Therefore since there is a question as to 
the unconstitutionality of two state statutes in this matter, 
the District Court should have invoked the mandatory pro­
visions of 28 U.S.C. 2281-2284.

THAT THE LOUISIANA LAW  REQUIRING STUDENTS 
SEEKING ADMISSION TO PRESENT A  CERTIFICATE

OF ELIGIBILITY IS CONSTITUTIONAL.

In the regular session of 1956 the Legislature of 
the State of Louisiana passed Act 15 of 1956 (La. R.S. 
17:2131-2135, inclusive) which reads as follows:

“ Be it enacted by the Legislature of Louisiana: 
“ Section 1. No person shall be registered at or ad­
mitted to any publicly financed institution of higher 
learning of this state unless he or she shall have 
first filed with said institution a certificate ad­
dressed to the particular institution sought to be 
entered attesting to his or her eligiblity and good



19

moral character. This certificate must be signed by 
the Superintendent of Education of the Parish, 
County, or Municipality wherein said applicant grad­
uated from High School, and by the principal of the 
High School from which he graduated.
“ Section 2. The form of the above referred to cer­
tificate shall be prepared by the Department of Ed­
ucation of the State of Louisiana, and a sufficient 
number thereof shall be furnished to each Superin­
tendent of Education through the State to meet 
the annual requirements of those seeking admission 
to the above institutions. He shall furnish sufficient 
copies thereof to applicants residing outside the State 
of Louisiana who apply therefor.
“ Section 3. Each student graduating from any 
public High School in the State of Louisiana shall 
be given proper notice of the above requirement 
at the time of his or her graduation; all publicly 
financed institutions of higher learning shall in­
corporate in their annua] catalogues proper notice 
that the above referred to certificate is an essential 
requirement for admission.
“ Section 4. Any official or employee of any institu­
tion of higher learning financed by the State of Lou­
isiana who admits any student to said institution 
in violation of the provisions of this Act shall be 
deemed guilty of committing a misdemeanor and 
upon conviction thereof shall be fined not more 
than $500.00 or imprisoned for not more than six 
months, or both.
“ Section 5. The State Board of Education and/or 
the Board of Supervisors of Louisiana State Uni­
versity and Agricultural and Mechanical College are 
hereby especially authorized and empowered to adopt



20

such other entrance requirements, including- aptitude 
and medical examinations, as in their judgment 
may be fit and proper.

“ Section 6. All laws or parts of laws in conflict 
herewith are hereby repealed.”

An examination of the above quoted statute shows 
beyond question that the legislature desired each and every 
student applying for admission to a publicly financed insti­
tution of higher learning to furnish the institution, a Certif­
icate of Eligibility, which certificate shall attest to the good 
moral character and qualifications of said applicant.

That requirements of the above nature are well 
within the province of the legislature to establish is with­
out question. As stated in 55 Am. Jur. 10:

“ The right to attend the educational institutions of 
a state is not a natural one, but is a benefaction 
of the law. One seeking to become a beneficiary of 
this gift must submit to such conditions as the law 
imposes as a condition precedent thereto. Hence, 
where a legislature, acting under a constitutional 
mandate, establishes a university, it may also legis­
late as to what persons are entitled to be admitted 
to its privileges and to instruction therein.”

See also 14 C.J.S. 1359:

“ The legislature may properly regulate the conditions 
on which students may be admitted to a university 
maintained by the state, and under delegated author­
ity and in the reasonable exercise of its discretion 
the governing body of a state college or university 
may establish rules as to admission of students.”

Nowhere in the complaint does plaintiff aver that 
any of defendants have administered Act 15 of 1956 unfairly



21

or partially. An affidavit by Richard J. Russell, Dean of the 
graduate school shows affirmatively that the eligibility certi­
ficate law was uniformly applied to all applicants for ad­
mission to the graduate school regardless of race or color. 
(Tr. p. 27) This is further shown by the fact that negro 

students who presented the said certificates of eligibility 
were duly registered at the University.

The contention of plaintiff in this matter appears 
to be that Act 15 is not in itself unconstitutional, but that 
Act 249 and other non-related acts of the Louisiana Legisla­
ture show that the enacters intended Act 15 to be a part of a 
system to deprive plaintiff of her constitutional rights.

Act 15 is a complete act within itself and depends 
upon no implementation from other acts of the legislature 
either in effect at the time nor passed at the same session 
of the legislature.

Plaintiff in her contention runs afoul of the un­
qualified legal doctrine that none of the rules of statutory 
construction should or may be used to ascertain the meaning 
or application of a statute since the rules of statutory con­
struction have no place except in the domain of ambiguity.

See:

United States v. Hartwell, 6 Wall 385, 18 L.Ed.
830.
George Van Camp & Sons Co. v. American Can
Co., 278, U.S. 245, 49 S.Ct. 112, 73 L.Ed. 311.
(1929)
Hamilton v. Rathbone, 175 U.S. 414, 419, 421,
20 S. Ct. 155, 44 L.Ed. 219. (1899)
Russell Motor Car Co. v. United States, 261,
U.S. 514, 43 S.Ct. 428, 67 L.Ed. 778. (1923)



22

United States v. Barnes, 222 U.S, 513, 518, 519,
32 S.Ct. 117, 56 L.Ed. 291-293. (1912)
Caminetti v. United States, 242 U.S. 470, 61 
L.Ed. 442, 37 S.Ct. 192. (1917)
Packard Motor Car Co. v. National Labor Re­
lations Board, 330 U.S. 485, 91 L.Ed. 1040, 67 
S.Ct. 789 (1947).
Ex Parte Collett, 337 U.S. 55, 93 L.Ed. 1207,
69 S.Ct. 944 (1949).
State v. Maestri, 5 So. 2d 499, 199 La. 49. 
(S.Ct., La., 1941)
State v. Arkansas-Louisiana Gas Co., 78 So.
2d 825, 227 La. 179. (S.Ct., La., 1955)
State ex rel Noe v. Knop, 190 So. 135. (La. 
App., 1938)

The District Court in using other acts to determine 
the constitutionality of Act 15 used the cases of Orleans 
Parish School Board v. Bush, 242 F.2d 156 (C.C.A. 5, 1957) 
and Davis v. Schnell, 81 F. Supp. 872, (D.C., S.D., Ala., 1949) 
to support its contention that other acts should be used to 
determine the legislative intent. These two cases may be 
easily distinguished on the factual situations.

In Davis v. Schnell, while the Court mentioned 
another act (Title 17, Sec. 33, Code of Alabama 1940) in its 
statement of facts it never once in its opinion referred to 
that act or used that act to determine the constitutionality 
of the “ Boswell Admendment” . Further, if the Court had 
used another act to determine the constitutionality of the 
Boswell Amendment, it is clear that it had a right to do 
so since it found that the Boswell Amendment was ambigu­
ous. It so held in the following language:

“When a word or phrase in a statute or constitu­
tion is ambiguous, it is the duty of the court, in



23

construing the meaning of that word or phrase, to 
attempt to determine whether an exact meaning was 
intended and if so, to ascertain that meaning. If 
an exact meaning of the phrase “ understand and 
explain”  were to be discovered by a process of 
construction in this case, it might be that a suit­
able and definite standard could be found, which 
would not give to the board of registrars arbitrary 
power. However, a careful consideration of the leg­
islative and other history of the adoption of this 
Amendment to the Constitution o f  Alabama dis­
closes that the ambiguity inherent in the phrase 
“ understand and explain” cannot be resolved, but, 
on the contrary, was purposeful and used with a 
view of meeting the decision of the Supreme Court 
of the United States in Smith v. Allwright, 321 
U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 
1110. The history of the period immediately pre­
ceding the adoption of the Boswell Amendment, of 
which we take judicial notice, and the evidence in 
this case prove this.”

In the case of Orleans Parish School Board v.
Bush, 242 F. 2d 156, (C.C.A., 5, 1957) the Court did not
actually use other statutes to find Act 556 unconstitutional.
The Court definitely said this in the following language:

“ Thus we need not determine whether the enact­
ment of this law contemporaneously with Act 555 
and closely following the readoption of the racially 
separate schools provision of the state constitution, 
. . .  is sufficient of itself to condemn it as part of the 
illegal legislative plan comprehended in Act 555, 
although this is precisely the type of determination 
on which the three judge court in Davis v. Schnell,



24

supra, based its decision striking down an amend­
ment to the Alabama constitution.”

The District Court cited the above two cases in addi­
tion to the case of Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 
220, which it felt supported its decision herein. All three of 
these cases are clearly distinguishable on other grounds, in 
that in all three cases the law attacked gave to agencies dis­
cretion in the performance of their duties, and the particu­
lar statutes allowed these officials to exercise that discretion 
arbitrarily, according to whim or caprice.

In the case of Yick Wo v. Hopkins, 118 U.S. 356, 366, 
30 L.Ed. 220, the Court stated as follows:

“ That court considered these ordinances as vesting 
in the board of supervisors a not unusual discretion 
in granting or withholding their assent to the use 
of wooden buildings as laundries, to be exercised 
in reference to the circumstances of each case, with 
a view to the protection of the public against the 
dangers of fire. We are not able to concur in that 
interpretation of the power conferred upon the su­
pervisors. There is nothing in the ordinances which 
points to such a regulation of the business of keep­
ing and conducting laundries. They seem intended 
to confer, and actually do confer, not a discretion 
to be exercised upon a consideration of the circum­
stances of each case, but a naked and arbitrary 
power to give or withhold consent, not only as to 
places, but as to persons. So that, if an applicant 
for such consent, being in every way a competent 
and qualified person, and having complied with 
every reasonable condition demanded by any public 
interest, should, failing to obtain the requisite con­
sent of the supervisors to the prosecution of his



25

business, apply for redress by the judicial process 
of mandamus, to require the supervisors to consider 
and act upon his case, it would be a sufficient an­
swer for them to say that the law had conferred 
upon them authority to withhold their assent, with­
out reason and without responsibility. The power 
given to them is not confided to their discretion in 
the legal sense of that term, but is granted to their 
mere will. It is purely arbitrary, and acknowledges 
neither guidance nor restraint.”

See also Davis v. Schnell, 81 F. Supp. 872 (D.C., S.D., Ala.,
1949) at page 880:

“ To state it plainly, the sole test is: Has the appli­
cant by oral examination or otherwise understood 
and explained the Constitution to the satisfaction 
of the particular board? To state it more plainly, 
the board has a right to reject one applicant and 
accept another, depending solely upon whether it 
likes or dislikes the understanding and explanation 
offered. To state it even more plainly, the board, 
by the use of the words “ understand and explain,” 
is given the arbitrary power to accept or reject any 
prospective elector that may apply, or, to use the 
language of Yick Wo v. Hopkins, 118 U.S. 356, 366,
6 S.Ct. 1064, 1069, 30 L.Ed. 330, these words 
“ actually do confer, not a discretion to be exer­
cised upon a consideration of the circumstances of 
each case, but a naked and arbitrary power to 
give or withhold consent * *

See also Orleans Parish School Board v. Bush, 242 F.
2d 156 at page 164:

“ Whatever might be the holding as to the validity 
of an administrative pupil assignment statute con-



26

taining reasonably certain or ascertainable stand­
ards to guide the official conduct of the superintend­
ent of the local school board and to afford the basis 
for an effective appeal from arbitrary action, Act 
556 is not such a statute. The plaintiffs, seeking 
to assert their right to attend non-segregated schools 
as guaranteed them under the Constitution, would be 
remitted to an administrative official guided by no 
defined standards in the exercise of his discretion. In 
such circumstances no number of hearings or appeals 
would avail them anything because it would be im­
possible for them to bring forward any proof bear­
ing on whether they possessed those attributes, quali­
fications or characteristics that would bring them 
within the group of students permitted to attend 
the particular school or schools. Attempts by stat­
ute to give any official the power to assign students to 
schools arbitrarily according to whim or caprice are 
legally impermissible, especially if considered in light 
of the history of assignments made in a manner that 
has now been held to be unconstitutional and of the 
recently readopted requirement of the state consti­
tution reaffirming such unconstitutional standards, 
which is reinforced by the heavy sanctions against 
any official permitting a departure therefrom con­
tained in a companion statute. Such a statute is 
unconstitutional either because it has on its face 
the effect of depriving appellees of their liberty or 
property without due process of law or as having 
implied as its only basis for assignments the prohib­
ited standard of race.”

The facts in this case are entirely different than 
those set forth in the cases above. The statute herein leaves 
no room for the exercise of any discretion whatsoever.



27

The admission of any student to the University under this 
statute is purely a ministerial function. If the student 
has a Certificate of Eligibility and is otherwise quali­
fied, he will be admitted. If the student has all other 
qualifications, but does not have a Certificate of Eligi­
bility, he cannot be admitted to the University.

THAT THE EVIDENCE USED BY THE COURT
TO DETERMINE LEGISLATIVE INTENT WAS 

CLEARLY INADMISSABLE

In the trial below the plaintiff presented absolutely 
no evidence whatsoever which would show the intent of 
the Legislature. However, the Court on its own motion 
tried to determine the legislative intent in enacting Act 
15 by delving into the legislative history thereof.

The State of Louisiana does not keep any min­
utes of the committee meetings on any particular bill 
or on debate of a bill in either the House or Senate. Even 
if such debate on the floor of either of the chambers or 
of the committee were available such would not be ad- 
missable to determine legislative intent.

Third District Land Company v. Toka 170 So. 793 (La.
App., 1936)
Beck v. Fanion, 124 Conn. 549, 1 A. 2d 143 (1938)

It would appear that the Court based its decision 
in this case to a large degree upon statements made by 
one and/or some Legislators, referred to 17 La. Law Review 
112. It is clear that these statements of individual Legislators 
as to their understanding of acts passed is clearly inadmiss- 
able. As stated in 59 C. J., 1017:

“ The intention of the legislature to which effect 
must be g i v e n  is that expressed in the S t a tu t e



28

and the courts cannot inquire into the motives which 
influenced the legislature, or individual members, in 
voting for its passage; nor indeed as to the intention 
of the draftsman; or the legislature so far as it has 
not been expressed in the act. So, in ascertaining the 
meaning of a statute, the court will not be governed 
or influenced by the views or opinion of any or all 
of the members of the legislature or its legislative 
committees, or of any other person.”

This same rule of law applies even if the state­
ments are made by draftors of the particular legislation 
or by members of the legislative committee.

Litchfield v. Bridgeport, 103 Conn. 565, 131 A.
560 (1925)
Marchese v. United States, 126 F. 2d 671 (C.C.A.,
5, 1942)
Third District Land Company v. Tolca, 170 So.
793 (La. App., 1936)

THE THREE NEW NAMED PLAINTIFFS SHOULD 
NOT HAVE BEEN ALLOWED TO INTERVENE

In this particular suit there was initially only one 
plintiff, Arnease Ludley. Her complaint proported to be a 
class action in behalf of herself and others similarly situated. 
On the trial of this matter defendants showed conclusively 
and without contradiction that she was not scholastically 
qualified to continue attending the Louisiana State University 
Graduate School. (Tr. pp. 22, 28, 29, 37, 38, 39, 42, 43, 45 
and 47).

At this particular point it would appear that the 
only named plaintiff was definitely not eligible to bring this 
suit and under such conditions the suit would fall. This is



29

particularly true in view of language used by the Court of 
Appeal in Cook v. Davis, 178 F 2d 595. (C.C.A., 5, 1950)

“ We will not attempt at all to review the conclusions 
reached on the merits, further than to remark that in 
a class suit if there is a failure to make out a case 
for the named plaintiff, Davis being the only one 
here, there is authority that no decree can be entered 
for plaintiffs. 47 C.J. Parties, Section 100, 21 C. J. 
Equity Sec. 284.”

Ten days after the hearing on the preliminary 
injunction three persons, in an attempt to breathe life into 
the morbid cadaver, filed a motion to intervene into the 
suit. (Tr. p. 98). Under the ruling of the case of Cook v. 
Davis, 179 F 2d 595 above stated, it is doubtful whether the 
intervenors had any complaint in which to intervene. The 
courts have held that under Rule 24 (F.R.C.P) where the 
original action has fallen or abated there is no possibility of 
intervention.

Owens v. Paramount Production, Inc. 5 F.R. Serv.
15a 31 case 1; 41 F. Supp. 557 (D.C.S.D. Cal, 

1941)
Bantel v. McGrath, 215 F 2d 297. (C.C.A., 10,
1954)

In addition to the fact that intervenors should not 
have been allowed to revive the complaint, they did not 
come into Court in compliance with Rule 24(c) (F.R.C.P.). 
The motion to intervene and verification was the only plead­
ing filed, omitting entirely the additional pleading setting 
forth the claim or defense for which the motion is sought. 
The effort to overcome this by adopting the allegations of 
the original plaintiff’s petition was clearly not sufficient. 
As stated in Cyclopedia of Federal Procedure, Third Edition, 
Volume 7, Section 24.36



30

“ The motion by which intervention is sought shall, 
by the terms of Rule 24 (c ), be accompanied by a 
pleading setting forth the claim or defense for which 
intervention is sought. The purpose of the rule re­
quiring the motion to state the reasons therefor and 
accompany the motion with a pleading setting forth 
the claim or defense is to enable the court to deter­
mine whether the applicant has the right to inter­
vene, and, if  not, whether permissive intervention 
should be granted.

“ Thus, the right to intervene should not be a matter 
of speculation. The pleading accompanying the mo­
tion to intervene should set up the interest of the 
party just as in an original complaint. In this con­
nection, reference should be had to the requirements 
of the Rules of Civil Procedure with regard to plead­
ings in general. It will not suffice to allege in the 
motion ‘that applicants adopt the allegations and 
prayers contained in the petition, as amended, and 
the motions filed by plaintiff.’ ”

As a further result of plaintiffs’ method of inter­
vention they provided the court with neither a verified pe­
tition nor an affidavit to support their contention, which 
form the basic necessity for the granting of injunctive re­
lief.

See:

Cyclopedia of Federal Procedure, Third Edition, 
Volume 7, Sec. 73.59
Rule 65 a & b, Code of Federal Procedure. 
Moore’s Federal Procedure, Second Edition Vol­
ume 7, Section 65.04 (3) pp. 1636-1641.



31

DEFENDANTS WERE NOT GIVEN 
A  PROPER HEARING WITH REGARD TO 

THE INTERVENING PARTIES

Rule 65(a) (F.R.C.P.) provides that no preliminary 
injunction shall be issued without notice to the adverse par­
ties. This provision has been construed by the court to mean 
that the adverse parties shall be entitled to a hearing as well.

Sims v. Green, 161 F. 2d 87, (C.C.A. 3, 1947) 
Cyclopedia of Federal Procedure, Vol. 14, Sec. 
73.57

In the trial of this matter applicants were in fact granted 
a hearing on the 8th day of February 1957 (Tr. p. 50). Then, 
however, the only named plaintiff in the suit was Arnease 
Ludley, and the evidence she presented was the only and sole 
evidence presented to support the prayer for injunctive re­
lief. When the three new plaintiffs were allowed to intervene 
by the court on April 15, 1957 (Tr. p. 113), the defendants 
were left in the position of having judgment rendered against 
them as a result of three parties who had not, in name, been 
before the court at the time of the hearing.

It is seriously contended that the defendants in this 
matter were tried by hidden and unnamed parties who made 
no appearance prior to or during the trial of the matter, 
and that in circumstances like this, defendants were not af­
forded a proper hearing.

A  PRELIMINARY INJUNCTION SHOULD NOT 
HAVE ISSUED WITHOUT A  BOND 

FOR SECURITY

On April 15, 1957 the District Court issued a pre­
liminary injunction against defendants herein enjoining them 
from denying admission to any otherwise qualified student



32

because of failure to produce a Certificate of Eligibility 
(Tr. p. 121). The plaintiffs in this suit had not filed a security 
bond either upon granting of the temporary restraining order 
or this preliminary injunction, nor have they done so to 
date. Rule 65(c) (F.R.C.P.) provides definitely that no re­
straining order or preliminary injunction shall issue except 
upon giving of security by the applicant.

Cyclopedia of Federal Procedure Vol. 14, Sec.
73.55

Since applicants herein failed to comply with the 
direct provisions of law the court erred in granting the said 
preliminary injunction, and the same should be dissolved.

Holahan v. Holahan, 11 Fed. Rules Serv. 65e.l,
Case 1, 8 F.R.D. 221
Chatz v. Freeman et al., 204 F. 2d 764, (C.C.A.
7, 1953)
Hopkins et al. v. Wallin et al. 179 F 2d 137 (C.C.A.
3, 1949)

CONCLUSION

In conclusion appellants submit that the District 
Court committed many prejudicial errors of a technical 
nature in overruling the well taken and well reasoned motion 
to dismiss. The District Court further attempted to apply 
rules stated in Brown v. Topeka and Orleans Parish School 
Board v. Bush in this case, when the factual situations herein 
were totally distinct and different. That was the fundamen­
tal error of the District Court which produced the multi­
plicity of erroneous rulings on technical questions. Had this 
situation not existed, there can be no doubt that in the light 
of the evidence and law presented in this case, an entirely 
different conclusion ultimately would have been reached by 
the Court.



33

It is accordingly submitted that this Court should 
set aside the judgment of the District Court.

Respectfully submitted,

JACK P. F. GREMILLION,
Attorney General,

State of Louisiana,
Baton Rouge, Louisiana;

GEORGE M. PONDER,
First Assistant Attorney General;

WILLIAM P. SCHULER,
Assistant Attorney General;

LAURANCE W. BROOKS,
Louisiana National Bank Bldg., 

Baton Rouge, Louisiana,

Attorneys for Appellants.

CERTIFICATE OF SERVICE

I hereby certify that on this day I have served 
copies of the foregoing brief on behalf of appellants on 
counsel to appellees by placing the same in the United States 
Mail with sufficient postage affixed thereto.

Dated this----------day of October, 1957.

WILLIAM P. SCHULER 
Attorney for Appellant 
403 Civil Courts Bldg. 

New Orleans, Louisiana



34

APPENDIX
CONSTITUTION, STATE OF LOUISIANA, 1921, 

ARTICLE XIX, SECTION 26

Section 26. The following named commissions, 
boards, bodies or municipal corporations are and shall be 
considered special agencies of the State of Louisiana:

(1) The State Parks Commission of Louisiana,

(2) The Recreation and Park Commission for the 
whole Parish of East Baton Rouge,

(3) All recreation districts created under terms of
Article XIV, Section 14 (d-4) of this Constitution;

(4) Any municipal corporation, parish or subdi­
vision of the State in matters respecting the operation or 
maintenance of parks and other recreational facilities or 
in connection with any rule or regulation applicable thereto,

(5) The State Board of Education,

(6) The Board of Supervisors of Louisiana State 
University and Agricultural and Mechanical College,

(7) The parish school boards of each of the parishes 
of the State of Louisiana,

(8) The school boards of the municipalities o f Mon­
roe in Ouachita Parish and Lake Charles in Calcasieu Parish, 
and Bogalusa in Washington Parish,

(9) The State Superintendent of Public Education 
in his capacity as such as well as in the capacity of ex-officio 
secretary of the State Board of Education, and

(10) The State Department of Education.

The consent of the State of Louisiana to suits or 
legal proceedings against any of the above listed special



35

agencies, (however heretofore given) is hereby expressly 
withdrawn and no such suit or proceeding shall be permitted 
except as provided in this section. This withdrawal of con­
sent to suits and legal proceeding shall apply not only to suits 
and legal proceedings filed in the future but also to any pend­
ing suits or legal procedure. There is expressly excepted from 
the foregoing, suits for the enforcement of contracts entered 
into by any of the special agencies or for the recovery of 
damages for the breach thereof. Additionally, the Legisla­
ture of Louisiana may, in individual cases, by appropriate act 
grant to any party showing just and reasonable cause the 
right to sue any of these special agencies, in compliance 
with Section 35 of Article III of this Constitution.

This Section shall be self-operative and shall super­
sede any other portion of this Consitution or any statutes or 
regulations in conflict herewith. (Act 613 of 1956, adopted 
November 6, 1956)

CONSTITUTION, STATE OF LOUISIANA, 1921 
ARTICLE XII, SECTION 7

Section 7. Board of Supervisors of Louisiana State 
University. (As amended Acts 1940, No. 397) The Louisiana 
State University and Agricultural and Mechanical College 
shall be under the direction, control, supervision and man­
agement of a body corporate to be known as the “Board of 
Supervisors of Louisiana State University and Agricultural 
and Mechanical College,”  which shall consist of the Governor, 
as ex-officio member, and fourteen members appointed by 
the Governor by and with the consent of the Senate. The 
appointive members of the Board on the effective date of 
this provision shall continue in office until the expiration of 
their respective terms. Thereafter, except as set forth herein­
after, the term of appointive members shall be fourteen years



36

or until their successors have been appointed, the term of two 
appointive members to expire on June first of every even- 
numbered calendar year; provided, however, that in order to 
place this provision in operation, the following terms shall 
apply: the successors to those members whose terms expire 
on January 1, 1941, shall be appointed to serve until June 1, 
1942; the members whose terms expire on January 1, 1942, 
shall serve until June 1, 1944; the members whose terms 
expire on January 1, 1943, shall serve until June 1, 1946; 
the successors to those members whose terms expire on Jan­
uary 1, 1944, shall be appointed to serve until June 1, 1948; 
the members whose terms expire on January 1, 1945, shall 
serve until June 1, 1950; the members whose terms expire 
on January 1, 1946, shall serve until June 1, 1952; the mem­
bers whose terms expire on January 1, 1947, shall serve until 
June 1, 1954. The successors of all such members of the board 
shall be appointed for terms of fourteen years each. In case 
of any vacancy, the Governor shall fill such vacancy for the 
unexpired term, by and with the advice and consent of the 
Senate. More than one member of the board may be appointed 
from the same parish, and at least seven appointive members 
thereof shall have been students at and graduates of Louisiana 
State University and Agricultural and Mechanical College. 
The Board shall elect from its appointive members, a Chair­
man, and a Vice-Chairman; and shall also elect a Secretary, 
who need not be a member of the Board.

State Board of Education. The State Board of Edu­
cation shall have supervision of all other higher educational 
institutions, subject to such laws as the Legislature may 
enact. It shall appoint such governing bodies as may be pro­
vided. It shall submit to the Legislature, or other agency des­
ignated by the Legislature, a budget for said Board and for 
these institutions.

Teachers’ certificates; approval of private schools



37

and colleges. It shall prescribe the qualifications, and pro­
vide for the certification of the teachers of elementary, and 
secondary, trade, normal and collegiate schools; it shall have 
authority to approve private schools and colleges, whose sus­
tained curriculum is of a grade equal to that prescribed for 
similar public schools and educational institutions of the 
State; and the certificates or degrees issued by such private 
schools or institutions so approved shall carry the same priv­
ileges as those issued by the State schools and institutions. 
(As amended Acts 1940, No. 397, adopted Nov. 5, 1940).

LOUISIANA REVISED STATUTES OF 1950 
17:443

REMOVAL OF TEACHERS; PROCEDURE;
RIGHT TO APPEAL

A permanent teacher shall not be removed from 
office except upon written and signed charges of wilful neglect 
of duty, or incompetency or dishonesty, or of being a member 
of or of contributing to any group, organization, movement 
or corporation that is by law or injunction prohibited from 
operating in the state of Louisiana, or of advocating or in 
any manner performing any act toward bringing about in­
tegration of the races within the public school system or 
any public institution of higher learning of the state of Loui­
siana, and then only if found guilty after a hearing by the 
school board of the parish or city, as the case may be, which 
hearing may be private or public, at the option of the teach­
er. At least fifteen days in advance of the date of the hear­
ing, the school board shall furnish the teacher with a copy 
of the written charges. The teacher shall have the right to 
appear before the board with witnesses in his behalf and with 
counsel of his selection, all of whom shall be heard by the 
board at the said hearing. Nothing herein contained shall im­
pair the right of appeal to a court of competent jurisdiction.



38

If a permanent teacher is found guilty by a school 
board, after due and legal hearing as provided herein, on 
charges of wilful neglect of duy, or of imcompetency, or 
dishonesty, or of being a member of or of contributing to any 
group, organization, movement or corporation that is by 
law or injunction prohibited from operating in the state of 
Louisiana, or of advocating or in any manner performing any 
act toward bringing about integration of the races within 
the public school system of the state of Louisiana, and ordered 
removed from office, or disciplined by the board, the teacher 
may, not more than one year from the date of the said 
finding, petition a court of competent jurisdiction for a full 
hearing to review the action of the school board, and the 
court shall have jurisdiction to affirm or reverse the action 
of the school board in the matter. If the finding of the 
school board is reversed by the court and the teacher is or­
dered reinstated and restored to duty, the teacher shall be 
entitled to full pay for any loss of time or salary he or she 
may have sustained by reason of the action of the said school 
board. As amended Acts 1956, No. 249 § 1.

LOUISIANA REVISED STATUTES OF 1950 
17:1451— Powers and authority

The government of the university shall be intrusted 
to a board of supervisors who shall constitute a body corpor­
ate and have power and authority to perform all acts for the 
benefit of the university which are incident to bodies corpor­
ate, and which, by way of extension and not of limitation, 
shall include: the right to receive donations, grants, sub­
scriptions and bequests to the university, or to any school, 
college or division, or in trust therefor; the authority to accept 
grants of money or property for educational purposes from 
the federal government or from any other governmental 
agency, and to comply with any and all rules and regulations



39

governing such grants which are not in contravention of 
existing law; to sue and be sued; to recover all debts owing 
to the university; to receive all moneys appropriated to the 
university under the constitution or laws of the state; to 
borrow money and issue notes, bonds or certificates of in­
debtedness for the same and pledge fees, rents and revenues 
to guarantee payment thereof, in accordance with the 
statutory law on this subject; to invest the permanent funds 
of the university; to determine what fees shall be paid by 
students; to purchase any ground and purchase or erect 
any buildings or improvement thereon and to purchase any 
equipment necessary for the use of the university, subject 
to the other provisions of this Sub-part; to lease the lands 
or other property of the university in accordance with the 
statutory law on this subject; to sell or exchange any land 
or other property not needed for university purposes; to 
employ, fix the salaries and prescribe the duties of a president, 
professors and other officers and employees needed to carry 
on the work of the university; to formulate the courses of 
study; to adopt and alter all rules and regulations which 
may be deemed necessary or proper for the government 
of the university and for promoting the purposes for which 
it has been founded; to adopt and alter rules and regulations 
for the government and discipline of students; to affiliate 
with and institution giving any special course of instruction, 
upon such terms as may be deemed expedient, and which 
terms may include the retention by such institution of the 
control of its property, faculty and staff; and to award cer­
tificates, confer degrees and issue diplomas certifying the 
same, subject to the other provisions of this act.
17:1452— Duties

In addition to the other duties imposed by law, the 
board of supervisors shall, as soon as practicable adopt:

(1) By-laws setting forth the respective rights,



40

duties and responsibilities of the board of supervisors, the 
laws should be specific in fixing responsibility and in describ­
ing lines of authority without being so detailed as to en­
cumber the machinery of government with undue formality. 
These by-laws may provide appropriate rules under which 
from time to time they may be amended.

(2) Rules and regulations which may provide for :
(a) The organization of the general faculty of the 

university; and the organization of a faculty in each college 
or school in the university, with deliberative and legislative 
functions, charged with the determination of the education­
al policies of such college or school.

(b) The establishment of a university senate, or 
some similar representative body, to coordinate and regulate 
the work of the several divisions of the university.

(c) The tenure of members of the faculty.
(d) A method of obtaining expression of faculty 

opinion when appointments are to be made to the offices of 
president, chief academic officer of the university, deans, 
directors and heads or chairmen of departments.

(e) The establishment, award and continuance of 
fellowships, scholarships and all other forms of student aid, 
so designed as to promote high standards of achievement and 
scholarship in the respective recipients and to insure the 
award and continuance of fellowships and scholarships solely 
upon the basis of merit, and other forms of student aid 
strictly upon the basis of necessity and merit. Such rules 
and regulations shall provide standards for the award and 
continuance of legislative scholarships authorized by R.S. 
17:1671 through 17:1673.

(f) The administration of the various student loan 
funds and the granting and repayment of such loans. Such 
rules and regulations shall confirm all regulations adopted



41

and actions taken as to loans heretofore made by any faculty 
committee charged with the administration of such loan 
funds.

It shall be the further duty of the board of super­
visors to employ the proceeds of all donations, grants, sub­
scriptions and bequests to the university, or to any school, 
college or division, or in trust therefor, so as to effectuate 
the purposes and accord with the terms and conditions of 
such donations, grants, subscriptions and bequests.
17:1471— President of university; appointment; salary

There shall be a president of the university who 
shall be the executive head of the university in all its divisions. 
Except as herein otherwise provided, the president shall be 
responsible to the board of supervisors for the conduct of the 
university in all of its affairs, and shall execute and en­
force all of the decisions, orders, rules and regulations of the 
board with respect to the conduct of the university. The 
president shall be appointed by, and shall hold office at the 
pleasure of, the board. His salary shall be fixed by, and re­
corded in the proceedings of, the board. (Act 1940, No. 196) 
17:1472— Organization of university

The organization of the university shall be deter­
mined by the board of supervisors with due consideration for 
the recommendation of the president.

The board shall appoint such administrative officers, 
both academic and business, as it deems necessary; and it 
may designate the titles of such officers. All administrative 
officers shall be appointed by the board with due consider­
ation for the recommendations of the president; and their 
compensation shall be fixed by, and they shall hold office 
at the pleasure of, the board. (Act 1940, No. 196)