Salone v USA Reply Brief for Plaintiff Appellant

    IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 16,855

LOUISIANA STATE BOARD OF 
EDUCATION, ET AL.,

Appellants,

versus

ALMA LARK, ET AL.,
Appellees,

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;

WILLIAM C. BRADLEY,
Special Counsel for 

Attorney General,

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 with­
out jursdiction........................................................... 4

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 constitutional 
on its face and administered in a constitutional 
manner...................................................................    18

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

Plaintiffs should not have been granted a prelimi­
nary injunction without furnishing security..... 29

CONCLUSION.................................................   29

CERTIFICATE OF SERVICE....... ......................................  31

APPENDIX:
Statutes involved-—........ ...............................        32

AUTHORITIES CITED.

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

Page



a

AUTHORITIES CITED— (Continued).
Page

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

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

Davis v. County School Board, 142 F. Supp. 616 (D. C.,
E. D. Ya, 1956)..........     15

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

Ex Parte Bransford, 310 U. S. 354, 50 S. Ct. 947, 84 L.
944 (1949).........................................................................  15

Ex Parte Buder, 271 U. S. 461, 48 S. Ct. 557, 70 L. Ed.
1036 (1 9 2 6 )-...................................    15

Ex Parte Collett, 337 U. S. 55, 93 L. Ed. 1207, 69 S. Ct.
Ed. 1249 (1940).............................................................  22

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)........................................................................  14

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

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.

AUTHORITIES CITED— (Continued).
Page

155, 158, 44 L. Ed. 219 (1899).................................... 22

Hans v. Louisiana, 134 U. S. 1, 12, 13, 14, 10 S. Ct. 504,
33 L. Ed. 842, (1890)........ ...........................................  5

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

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, 1947)...........................................................  22

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).................................... 22

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)........................................................................ 28

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 W all 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 1 1 .........     5

LOUISIANA CONSTITUTION:

Article 19, Section 26..........   10

Article 12, Section 4......................................................... 11

Article 12, Section 5........................................................  11

Article 12, Section 7.................    11

STATUTES:

United States:

28 U. S. Code 2281-2284..........................................  2, 18

32 Stat. 823 (1903)..........................................................  12

36 Stat. 1087, 1162 (1911)............      13

iv

AUTHORITIES CITED—  (Continued).
Page



V

Louisiana:

Act 15 of 1956 (R.S. 17:2131-2135)................  1, 2, 18

Act 249 of 1956 (R.S. 17:443)............................. 1, 2, 18

Act 556 of 1954....... ......................... ............. ...................... 24

La. R.S. 17:13................................................................ 11

MISCELLANEOUS:

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

Federal Rules of Civil Procedure:

Rule 2 4 (c )........................................................   29

Rule 65(c) ......................................     29

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

Corpus Juris, Vol. 59, p. 1017.............................. .......... ...... 28

Cyclopedia of Federal Procedure:

Vol. 14, Sec. 73.30......... .......... .................................. . 10

Vol. 14, Sec. 73.55________ ___________ ___ ____ ____  29

81 Federalist......... .........       5

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

STATUTES CITED— (Continued).
Page



IN THE

UNITED STATES COURT OF APPEAES
FOR THE FIFTH CIRCUIT

No. 16,855

LOUISIANA STATE BOARD OF 
EDUCATION, ET AL.,

versus

ALMA LARK, ET AL.,

Appellants,

Appellees.

BRIEF ON BEHALF OF APPELLANTS

STATEMENT OF THE CASE

Plaintiffs filed a complaint in the United States Dis­
trict Court for the Eastern District of Louisiana, on January 
17, 1957, aganst Louisiana State Board of Education, the 
individual members of the Board, Shelby M. Jackson, State 
Superintendent of Education, Luther H. Dyson, President, 
and C. J. Hyde, Registrar, of Southeastern Louisiana College; 
and Joel L. Fletcher, President, and Lea L. Seale, Registrar, 
of Southwestern Louisiana Institute, seeking a temporary 
restraining order and preliminary and final injunctions to 
restrain the enforcement by officers of the State of Louisi­
ana, of certain Louisiana Statutes, to-wit: Louisiana Revised 
Statutes 17:443 and Revised Statutes 17:2131-2135 inclusive.



2

In this complaint they alleged that the aforesaid statutes 
were contrary to the Fourteenth Amendment of the United 
States Constitution in that said statutes deprived them and 
others simularly situated of rights, privileges and immuntes 
secured by the Constitution and Laws of the United States, 
to-wit: Rights secured by the equal protection and due pro­
cess clauses of the Fourteenth Amendment to the United 
States Constitution and Title 42, U. S. C., Section 1981; 
wherefore they prayed that a temporary restraining order 
issue enjoining Defendants from denying them the right to 
register at the respective colleges. They 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 
plantiffs’ registraton for the forth comng semester at the 
colleges, 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. (Tr. pp. 2-12)

On January 17, 1957, District Judge Herbert W. 
Christenberry issued a temporary restraining order enjoining 
defendants from refusing to register plaintiffs and others 
simularily situated at Southwestern Louisiana Institute and 
Southeastern Louisiana College until the hearing on said 
application for interlocutory injunction, and this temporary 
restraining order was extended from time to time until judg­
ment on the interlocutory injunction. (Tr. pp. 26, 28, 64, 65, 
66, 67, 68, 69, 70).

A hearing on the interlocutory injunction was had on 
February 8, 1957, at which time appellants filed a motion 
to dismiss based on lack of jurisdiction of the court and the



3

plaintiffs’ failure to state a claim upon which relief could 
be granted. (Tr. p. 29).

Appellants then filed their answer in the matter deny­
ing that the state statutes in question were contrary to or 
in violation of plaintiffs’ constitutional rights. (Tr. pp. 51-56).

Appellants, in support of their position, filed affidavits 
of college officials which showed conclusively that the Certifi­
cate of Eligibility requirement had been applied uniformly 
to white and negro students seeking admission for the Spring 
Semester of 1957. (Tr. pp. 32-38)

At this point the Court consolidated this case with 
the cases of Bailey v. Louisiana State Board of Education, 
et al. and Ludley v. Louisiana State University Board of 
Supervisors et al. (Tr. p. 62)

The Court heard argument of counsel on this and con­
solidated cases and reserved judgment thereon allowing both 
sides the opportunity to file memoranda in suppoiT of their 
position within twenty (20) days. (Tr. p. 63)

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. 
71-77).

In conformity with said opinion, the Court issued a 
temporary injunction restraining defendants from refusing 
to admit any qualified applicant to Southwestern Louisiana 
Institute and Southeastern Louisiana College for the purpose 
of pursuing a course of study offered by those colleges because 
of failure of the applicant to present the Certificate of Eli­
gibility provided in Louisiana Revised Statutes 17:2131-2135.



4

Application for new trial and rehearing was filed on behalf 
of the appellants predicated on seven separate allegations of 
error on the part of the District Court. (Tr. pp. 80-82). This 
motion was denied on May 20, 1957 (Tr. p. 83).

Having exhausted all remedies before the lower court, 
appellants, on May 29, 1957 filed a notice of appeal (Tr. 
p. 83), and filed the necessary bond for costs (Tr. pp. 84-86).

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 Federal 

judicial authority.

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

III. That the Louisiana Eligibility Law was uncon­
stitutional.

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

V. 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



5

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 Constitution 
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. George, 2 U. S. 2 Dali. 419 [1:440] (1793).

This decision created such a shock of surprise through­
out the country that, at the first meeting of Congress there­
after, the Eleventh Amendment to the Constitution 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 sovereignty 
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



6

adoption of the Constitution, with respect to a state’s im­
munity 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 
resented, 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:

$  * *  $

“ ‘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 gen­
eral 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 objec­
tions which he so forcibly met, was that which de­
clared that ‘the judicial power shall extend to all



7

. . . controversies between a State and citizens of 
another State,. . . and between a State and Foreign 
states, citizens of subjects.’ It was argued by the 
opponents of the Constitution that this clause would 
authorize jurisdiction to be given to the federal courts 
to entertain suits against a State brought by the 
citizens of another State, or of a foreign state. Adher­
ing 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 sub­
sequently 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 
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 oper­
ation it can have is that, if a State should wish to 
bring a suit against a citizen, it must be brough be­
fore 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 this—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



8

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 recover 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 cannot 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 de­
fendant 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 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.



9

“ 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 principal 
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.

This decision, however, layed down at least one re­
straint on the power of the Federal Court to declare uncon­
stitutional 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.”



10

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 State Board of Education and the State 
Superintendent of Public Education. Article XIX, Section 26, 
reads as follows:

“ Section 26. The following named commissions, 
boards, bodies or municipal corporations shall be 
considered special agencies of the State of Louisi­
ana:

$  $  $  $

“ (5) The State Board of Education,

:jc ^

“ (9) The State Superintendent of Public Education 
in his capacity as such as well as in the capacity



11

of ex-officio secretary of the State Board of Educa­
tion, and

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

Despite the above provisions of Louisiana Constitution, 
plaintiffs herein saw fit to make the State Board of Edu­
cation and the State Superintendent of Education, parties 
defendant along with the Presidents and Registrars of the 
two colleges and the individual members of the Board of 
Education.

The State Board of Education is created by the consti­
tution of the State of Louisiana (Article 12, Section 4 ). Its 
right to supervise the two colleges involved herein is also 
granted by the Constitution (Article 12, Section 7).

The position of the State Superintendent of Public 
Education is created by the Constitution (Article 12, Section 
5) and the duties of the office are set forth in Louisiana 
Revised Statute 17:13.

A careful reading of these laws will clearly show that 
they do not confer upon these state officials any power to 
enforce the provisions of Act 15 of 1956. Probably the only 
persons made defendants in this suit who have enforcement 
power are the Registrars of the two colleges. The joinder of 
these parties who have no enforcement power brings this



12

within the class of a prohibited suit against the State of 
Louisiana.

The other act attacked by plaintiffs is Act 249 of 1956. 
This act prohibits certain actions on behalf of permanent 
teachers of the State of Louisiana. This act clearly provides 
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 prohibited by the 11th 
Amendment to the United States Constitution.

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 
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 
injunctive 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 Minnesota 
attempted to enforce transportation rates established by the 
State Legislature, and stockholder 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 notwtihstanding the Eleventh Amendment which pro­
hibits individual suits against a state, federal courts, under 
appropriate circumstances, can issue injunctions against state 
officials seekng 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 
possible abuse of such injunctive powers vested in a single 
federal 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 enter­
tain petitions 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



14

device was adopted in the belief that the more careful con­
sideration 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 
applications for permanent injunctions as well. Various 
amendments 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 injunction; 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. 104.0:1 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 substan­
tial constitutional question is not presented then there is no 
necessity of invoking the three-judge court.

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

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



15

(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 constitutionality 
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 unconsti- 
tutionality as a result of previous decisions.

California Water Service Company v. City of Red­
ding, 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 considera­
tion it is also evident that exception No. 5 is not applicable 
in this case. In regards to this, there has been a rather gen­



16

eral 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 question of constitutionality, 
but whether there is a serious question of unconstitutionality 
present. 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 as­
sumes 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 presented. ‘A substantial claim of uncon­
stitutionality is necessary for the application of §
266.’ Ex parte Buder, 271 U. S. 461, 467; Louis­
ville & Nashville R. Co. v. Garrett, 231 U. S. 298,
304. That provision does not require three judges to 
pass upon this initial question of jurisdiction.
“ The existence of a substantial question of constitu­
tionality 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 unsubstan­
tial, 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 Com­
pany 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, there­
fore, no serious question of unconstitutionality was raised. 
The Court stated as follows:

“ We are of the opinion that these rulings were cor­
rect. 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 adminis­
trative order as there described. It is therefore the 
duty of a district judge, to whom an application 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 provision 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 simi­
lar rule governs proceedings under § 3 of the Act 
of August 24, 1937, as to the participation of three 
judges in passing upon applications for injunctions 
restraining the enforcement of federal statutes upon 
the ground of constitutional invalidity. Had the deci­



18

sions in the eases of Alabama Poiver Co. v. Ickes, 
supra, and of Duke Power Co. v. Greenwood County,
802 U. S. 485, been rendered prior to the filing of 
the bill of complaint in the instant case, no substan­
tial federal question would have been presented. The 
lack of substantiality in a federal question may 
appear 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 . . . .  ”

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 possibility 
of an injunction issuing against the enforcement of such 
statute. Since there is a question as to the constitutionality 
of two State Statutes in this matter the District Court 
should have invoked the mandatory provisions 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 addressed to



19

the particular institution sought to be entered attest­
ing to his or her eligibility and good moral character. 
This certificate must be signed by the Superintend­
ent of Education of the Parish, County, or Munici­
pality wherein said applicant graduated 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 Edu­
cation 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 pub­
lic 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 incorporate in 
their annual catalogues proper notice that the above 
referred to certificate is an essential requirement 
for admission.

“ Section 4. Any official or employee of any insti­
tution of higher learning financed by the State of 
Louisiana who admits any student to said institu­
tion 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.



20

“ 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 
such other entrance requirements, including appti- 
tude 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 high learning to furnish the institution, a Certificate 
of Eligibility, which certifcate shall attest to the good moral 
character and qualfications of said applicant.

That requirements of the above nature are well within 
the province of the legislature to establish is without 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 im­
poses 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



21

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 or 
partially. Affidavits of various college officials show affirm­
atively that the eligibility certificate law was uniformly 
applied to all applicants for admission to the colleges regard­
less of race or color. (Tr. pp. 32-38)

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 plaintiffs of their 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 their contention run afoul of the unquali­
fied legal doctrine that none of the rules of statutory con­
struction 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. 880.
George Van Camp & Sons Co. v. American Can



22

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).

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., 
1939)

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, 1947) 
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



23

its statement of facts it never once in its opinion referred 
to that act or used that act to determine the constitution­
ality of the “ Boswell Amendment” . Further, if the Court 
had used another act to determine the constitutionality of 
the Boswell Amendment, it is clear that they had a right 
to do so since it found that the Boswell Amendment was 
ambiguous. It so held in the following language:

“ When a word or phrase in a statute or constitution 
is ambiguous, it is the duty of the court, in con­
struing the meaning of that word or phrase, to at­
tempt to determine whether an exact meaning was 
intended and if so, to ascertain that meaning. If an 
exact meaning of the phrase ‘understand and ex­
plain’ were to be discovered by a process of con­
struction in this case, it might be that a suitable 
and definite standard could be found, which would 
not give to the board of registrars arbitrary power. 
However, a careful consideration of the legislative 
and other history of the adoption of this Amendment 
to the Constitution of Alabama discloses 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 preceding the adoption of the 
Boswell Amendment, of which we take judicial no­
tice, and the evidence in this case prove this.”

In the case of Orleans Parish School Board v. Bush, 
242 F. 2d 156, 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 enactment 
of this law contemporaneously with Act 555 and 
closely following the readoption of the racially sepa­
rate schools provision of the state constitution, . . . 
is sufficient of itself to condemn it as part of the 
illegal legislative plan comprehended in Act 555, al­
though this is precisely the type of determination 
on which the three judge court in Davis v. Schnell, 
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 discretion in the performance of their duties, 
and the particular 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 
supervisors. There is nothing in the ordinances

24



25

which points to such a regulation of the business of 
keeping and conducting laundries. They seem in­
tended to confer, and actually do confer, not a dis­
cretion to be exercised upon a consideration of the 
circumstances of each case, but a naked and arbi­
trary power to give or withhold consent, not only 
as to places, but as to persons. So that, if  an appli­
cant for such consent, being in every way a compe­
tent 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 
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 
answer 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 acknow­
ledges neither guidance nor restraint.”

See also:
Davis v. Sehnell, 81 F. Supp. 872 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 propective



26

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 exercised upon a con­
sideration of the circumstances of each case, but a 
naked and arbitrary power to give or withhold con­
sent’ * *

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
taining reasonably certain or ascertainable standards 
to guide the official conduct of the superintendent 
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 ap­
peals would avail them anything because it would 
be impossible for them to bring forward any proof 
bearing on whether they possessed those attributes, 
qualifications or characteristics that would bring 
them within the group of students permitted to at­
tend the particular school or schools. Attempts by 
Statute to give any official the power to assign stu­
dents to schools arbitrarily according to whim or 
caprice are legally impermissible, especially if con­
sidered in light of the history of assignments made 
in a manner that has now been held to be uncon­
stitutional and of the recently readopted requirement



27

of the state constitution reaffirming such unconsti­
tutional standards, which is reinforced by the heavy 
sanctions against any official permitting a departure 
therefrom contained 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 prohibited 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. The ad­
mission of any student to the College under this statute is 
purely a ministerial function. If the student has a Certificate 
of Eligibility and is otherwise qualified, he will be admitted. 
If the student has all other qualifications, but does not have 
a Certificate of Eligibility, he cannot be admitted to the 
College.

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 minutes 
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 admissable to deter­
mine legislative intent.



28

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 in 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 given is that expressed in the statute, and 
the courts cannot inquire into the motives which in 
fluenced 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 gov­
erned or influenced by the views or opinion of any or 
all of the members of the legislature or its legisla­
tive committees, or of any other person.”

This same rule of law applies even if the statements 
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. Toka, supra



29

A PRELIMINARY INJUNCTION SHOULD NOT 
HAVE ISSUED WITHOUT A  BOND 

FOR SECURITY

On April 15, 1957 the District Court issued a prelimin­
ary injunction against defendants herein enjoining them from 
denying admission to any otherwise qualified student be­
cause 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 or­
der or this preliminary injunction, nor have they done so 
to date. Rule 65(c) (F.R.C.P.) provides definitely that no 
restraining order or preliminary injunction shall issue ex­
cept under 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 pre­
liminary inj unction, and the same should be dissolved.

Holahan v. Holahan, 11 Fed. Rules Serv. 65c.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.



30

Bush in this case, when the factual situations herein were 
totally distinct and different. That was the fundamental 
error of the District Court which produced the multiplicity 
of erroneous rulings on technical questions. Had this sit­
uation 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.

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

Respectfully submitted,

JACK P. F. GREMILLIQN,
Attorney General,

State of Louisiana,
Baton Rouge, Louisiana;

GEORGE M. PONDER,
First Assistant Attorney General;

WILLIAM P. SCHULER,
Assistant Attorney General;

WILLIAM C. BRADLEY,
Special Counsel for 

Attorney General;

Attorneys for Appellants.



31

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



32

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 subdivision 
of the State in matters respecting the operation or mainte­
nance of parks and other recreational facilities or in con­
nection with any rule or regulation applicable thereto,

(5) The State Board of Education,

(6) The Board of Supervisors of Louisiana State Uni­
versity 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 of Mon­
roe in Ouchita Parish and Lake Charles in Calcasieu Par­
ish, 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.



33

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 with­
drawn and no such suit or proceeding shall be permitted ex­
cept as provided in this section. This withdrawal of consent 
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 recov­
ery of damages for the breach thereof. Additionally, the Legis­
lature 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 supersede 
any other portion of this Constitution or any statutes or 
regulations in conflict herewith. (Act 613 of 1956, adopted 
November 6, 1956)

CONSTITUTION, STATE OF LOUISIANA, 1921 

ARTICLE XII, SECTION 4

Section 4. (As amended Acts 1950, No. 566) There 
is hereby created a State Board of Education to be com­
posed of eleven members as follows: Three members to be 
elected from districts corresponding to the present Public 
Service Commission districts, for terms of six years, except 
as herein provided, and eight members to be elected from 
districts corresponding to the present Congressional districts, 
for terms of eight years. The present members of the Board 
shall serve the remainder of their terms, and their succes­
sors shall be elected for terms as herein provided. The terms



34

of the three members elected from districts corresponding 
to the present Public Service Commission districts at the 
Congressional election of 1948 shall expire upon the quali­
fication of their successors, as follows: the term of the Mem­
ber from the First Public Service Commission District in 
December, 1952; the term of the Member from the Second 
Public Service Commission District in December, 1950; the 
term of the Member from the Third Public Service Commis­
sion District in December, 1954, and their successors shall 
be elected for terms of six years at the time fixed for the 
Congressional elections. Any vacancies occurring in the mem­
bership of the Board shall be filled by appointment of the 
Governor. All members shall serve without pay, except such 
per diem and expenses as shall be fixed by the legislature.

The Legislature shall prescribe the duties of said 
Board and define its powers; provided, that said Board shall 
not control the business affairs of Parish School Boards, 
nor the selection or removal of their officers and directors.

CONSTITUTION, STATE OF LOUISIANA, 1921 
ARTICLE XII, SECTION 5

Section 5. (As amended Acts 1922, No. 105) There 
shall be elected by the people at each succeeding general 
election a State Superintendent of Public Education, who 
shall be ex-officio Secretary of the Board, and whose salary 
shall be fixed by the State Board of Education at not less 
than Five Thousand ($5,000.00) Dollars nor more than 
Seven Thousand Five Hundred ($7,500.00) Dollars, payable 
monthly on his own warrant.



35

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, c o n t r o l ,  supervision and 
management of a body corporate to be know as the “ Board 
of Supervisors of Louisiana State University and Agricul­
tural and Mechanical College” , which shall consist of the 
Governor, as ex-officio member, and fourteen members ap­
pointed by the Governor by and with the consent of the 
Senate. The appointive members of the Board on the effec­
tive date of this provision shall continue in office until the 
expiration of their respective terms. Thereafter, except as set 
forth hereinafter, the term of appointive members shall 
be fourteen years or until their successors have been appoint­
ed, the term of two appointive members to expire on June 
first of every even-numbered calendar year; provided, how­
ever, that in order to place this provision in operation, 
the following terms shall apply: the successors to those mem­
bers whose terns expire on January 1, 1941, shall be ap­
pointed 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 mem­
bers whose terms expire on January 1, 1944, shall be appoint­
ed 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 m  January 1, 1946, shall 
serve until June 1, 1952; the members whose terms expire 
on January 1, 1947, shall serve until June 1, 1954. The 
successors of all such members of the board shall be ap­
pointed for terms of fourteen years each. In case of any



36

vacancy, the Governor shall fill such vacancy for the unexpir­
ed 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 Lou­
isiana State University and Agricultural and Mechanical 
College. The Board shall elect from its appointive members, 
a Chairman, 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 Educa­
tion shall have supervision of all other higher educational in­
stitutions, subject to such laws as the Legislature may enact. 
It shall appoint such governing bodies as may be provided. 
It shall submit to the Legislature, or other agency designated 
by the Legislature, a budget for said Board and for thest 
institutions.

Teachers’ certificates; approval of private schools and 
colleges. It shall prescribe the qualifications, and provide for 
the certification of the teachers of elementary, secondary, 
trade, normal and collegiate schools; it shall have authority 
to approve private schools and colleges, whose sustained curri­
culum is of a grade equal to that prescribed for similar pub­
lic schools and educational institutions of the State; and the 
certificates or degrees issued by such private schools or insti­
tutions so approved shall carry the same privileges as those 
issued by the State schools and institutions. (As amended 
Acts 1940, No. 397, adopted Nov. 5,1940).



37

LOUISIANA REVISED STATUTES OF 1950
17:443

REMOVAL OF TEACHERS; PROCEDURE; RIGHT 
TO APPEAL

A permanent teacher shall not be removed from of­
fice except upon written and signed charges of wilful neglect 
of duty, or incompetency or dishonesty, or of being a mem­
ber of or of contributing to any group, organization, move­
ment 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 or 
any public institution of higher learning of the state of Lou­
isiana, 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 teacher. 
At least fifteen days in advance of the date of the hearing, 
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 impair the right of appeal to a court of competent juris­
diction.

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 duty, or of incompetency, or dis­
honesty, 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 perform­
ing any act toward bringing about integration of the races 
within the public school system of the state of Louisiana,



38

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. I f  the finding 
of the school board is reversed by the court and the teacher 
is ordered 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
17:13

SUPERVISORY DUTIES OF STATE 

SUPERINTENDENT; TRAVELING EXPENSES

The state superintendent of education shall keep in 
close touch with all of the state educational institutions 
under the control of the state board of education, and of 
all the public schools of the various parishes with the view 
of seeing that the physical plants o f the schools are adequate 
and kept in the proper state of repair and sanitation; that 
the courses of study prescribed by the state board of educa­
tion are faithfully followed; that teachers meet the standards 
prescribed by the board; that classes are not overcrowded; 
that children are properly classified as to grades; that wise 
methods are used in the presentation of the subject matter; 
and in all other ways possible, assist the local authorities, 
superintendents, and teachers to secure the best possible re­
sults from their efforts. In the prosecution of this work of 
inspection and supervision, the various employees in the state 
department of education shall be under the immediate direc­
tion and control of the state superintendent of education,



and they shall make such verbal and written reports to him 
as he may require. In the professional administration of the 
schools, as indicated in this section, it shall be the duty of 
the heads of the various state educational institutions and of 
the public school officials in the various parishes to be guided, 
as far as practicable, by the suggestions and directions of 
the state superintendent.

The traveling and other necessary expenses of the 
state superintendent of education and other employees of 
the state department of education while engaged upon their 
official duties shall be paid out of the state public school fund 
not to exceed amounts appropriated by the legislature for 
this purpose.

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