The Legislature of Louisiana v. Earl Benjamin Bush Jurisdictional Statement

    7 0 6No

Office-Supreme Court, U.S.
r i L c : D

FEB 8 1961

JAMS B. BROWf ING, Clerk

IN THE

Supreme Court of tbe MntteP States

OCTOBER TERM, 1960

THE LEGISLATURE OF LOUISIANA, ET AL.,
Appellants

versus

EARL BENJAMIN BUSH, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT OF LOUISIANA

JURISDICTIONAL STATEMENT

W. SCOTT WILKINSON 
P. 0 . Box 1707
Shreveport, Louisiana
THOMPSON L. CLARKE 
St. Joseph, Louisiana
GIBSON TUCKER, JR.
Pere Marquette Building 
New Orleans, Louisiana
RUSSELL J. SCHONEKAS 
Pere Marquette Building 
New Orleans, Louisiana
Attorneys for the Legislature of Louisiana, et al.,

L E C O M T E ,  S H R E V E P O R T ,  L O U I S I A N A



SUBJECT INDEX

Opinions B elow ....................

Jurisdiction

Questions Presented ........................

Statutes Involved 

Statement ........................

The Questions Are Substantial .........................

Appendix A ................

Temporary Injunction Issued Nov. 30, I960,
Opinion of District Court issued 

Nov. 30, 1960 ..............................

Temporary Injunction issued Dec. 21, I960

Appendix B ................................

Act 2, Second E. S. of 1960 ............... .

HCR #  2 Second E. S. of 1960......................

HCR #23  Second E. S. of 1960 ..............
HCR #  28 Second E. S. of 1960..................... .

Appendix C ..................................

Ex Parte Order Designating the
United States as Amicus Curiae



AUTHORITIES CITED 

Cases

Arizona v. Californa,
283 US 423, 425, 75 L. Ed. 1154............................. 13

Barenblath v. U. S.,
360 US 109, 132, 3 L. Ed. 2d 1115........................  13

Brush v. C.I.R., 300 US 352, 81 L. Ed. 691................  12

C B & Q Ry. v. Otoe County,
16 Wall 667, 21 L. Ed. 375 .....................................  18

City of Denver v. Denver Tramway Corp.,
23 F. 2d 287, Cert. Den. 278 US 616, 73 L ed 539.. 18

Colorado v. Symes, 286 US 510, 76 L. Ed. 1253............ 12

England v. La. State Board, 263 F. 2d 261 ................  16

Fischler v. McCarthy,
117 F. Supp. 643, a ff’d 218 F. 2d 164................. . 16

Gas & Electric Sec. Co. v. Manhattan & Queens
Corp., 266 F. 625 ................................... ..................  16

Hans v. Louisiana, 134 US 1, 33 L. Ed. 842..............  17

Higginbotham v. Baton Rouge,
306 US 535, 83 L. Ed. 968 .....................................  15

Hodges v. U.S., 203 US 1, 51 L. Ed. 6 5 ........................  19

Keim v. U.S., 306 US 535, 83 L. Ed. 968 ....................  15

Larson v. Domestic & Foreign Corp.,
337 US 682, 93 L. Ed. 1628

ii

17



m

McCabe v. AT & SF Ry.,
235 US 151, 59 L. Ed. 1 6 9 .....................................  19

Mississippi v. Johnson,
71 US (4 Wall) 475, 18 L. Ed. 437 ............... 16

Missouri v. Adriano, 138 US 496, 34 L. Ed. 1012. 16

Missouri ex rel Gaines v. Canada,
305 US 337, 83 L. Ed. 208 ....................................  19

Mitchell v. U.S., 313 US 80, 85 L. Ed. 1201................. 19

Moffatt Tunnel Imp. Dist. v. D & S.L. Ry. Co.,
45 F. 2d 715 - Cert. den. 283 US 837, 75 L.
Ed. 1448 ................................. .... ................................. 18

New Orleans Waterworks v. New Orleans,
164 US 471, 41 L. Ed. 5 1 8 .....................................  16

Palmetto Fire Ins. Co. v. Conn.,
272 US 295, 71 L. Ed. 243 .....................................  3

Sanchez v. U.S., 216 US 167, 54 L. Ed. 432................  15

St. John v. Wisconsin Employment Bd.,
340 US 411, 95 L. Ed. 386 .....................................  3

Screws v. U.S., 375 US 109, 88 L. Ed. 1506................  12

Snowden v. Hughes, 321 US 1, 88 L. Ed. 497..............  19

Taylor v. Beckham,
178 US 570, 573, 44 L. Ed. 1198, 1199 ................  16

Tway Coal Co. v. Glenn, 12 F. Supp. 570, 587............ 18

Wall v. Close, 203 La. 345, 14 So. 2d 19........................  18

White v. Hart, 13 Wall, 646, 20 L. Ed. 685................  12



United States Code

28 USC 1253 .......................................................................  3

State Laws

Louisiana Constitution, Art. 9, Sec. 3 ......................... 14

Louisiana Constitution, Art. 12, Sec. 1 ........................ 14

Louisiana Constitution, Art. 12, Sec. 10 ...................... 14

Text Books

American Jurisprudence, Vol. 2, p. 679, 682 ............ 18

Corpus Juris Sec., Vol. 67, page 120, 121.   15

Corpus Juris Sec., Vol. 67, page 725 ............................ 16

Corpus Juris Sec., Vol. 81, page 1145..........................  18

iv



IN THE

No,

Supreme Court of ttje MnttctJ states

OCTOBER TERM, 1960

THE LEGISLATURE OF LOUISIANA, ET AL,,
Appellants

versus

EARL BENJAMIN BUSH, ET AL,

ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT OF LOUISIANA

. JURISDICTIONAL STATEMENT

Appellants, the Legislature of Louisiana, its Mem­
bers and Committees, appeal from two judgments of the 
United States District Court for the Eastern District of 
Louisiana, entered on November 30 and December 21, 
1960, declaring unconstitutional certain statutes enacted 
by the Legislature of Louisiana, and enjoining the Legis­
lature, its members and committees and the chief executive 
and other executives of the State of Louisiana from carry-

/



2

ing out any of the provisions of said statutes. Appellants 
submit this statement to show that the Supreme Court 
of the United States has jurisdiction of this appeal and 
that a substantial question is presented.

OPINIONS BELOW

The opinion of the District Court for the Eastern 
District of Louisiana, issued on November 30, 1960, and 
the temporary injunction issued pursuant thereto are un­
reported. No written opinion was issued in connection 
with the judgment and the temporary injunction issued 
on December 21, 1960. Copies of the opinion and the 
temporary injunctions complained of, are attached hereto 
as Appendix A.

Other opinions rendered before appellants were 
made parties hereto are reported in: 138 ,F Supp 336, 
A ff ’d 242 F 2d 156, Cert den 354 U. S. 121; 163 F. Supp. 
701, a ff’d 268 F. 2d 78; 187 F. Supp. 42.

J U R I S D I C T I O N

The Bush case was originally brought in the year 
1952 by certain negro plaintiffs on behalf of their minor 
children seeking admittance for them to public schools 
in the Parish of Orleans set aside for white children, and 
was brought under provisions of the 14th Amendment of 
the Constitution of the United States. In 1956 judgment 
was rendered ordering the integration of the Orleans 
Parish public schools. Thereafter, by supplemental com­
plaint, plaintiffs sought to enjoin certain statutes enacted



3

by the Legislature of Louisiana in 1960 and to have them 
declared unconstitutional in violation of the 14th Amend­
ment. The Williams case was filed in August, 1960, 
for the purpose of annulling or suspending the order 
issued by the court on May 16, 1960 for the integration 
of the public schools of Orleans Parish, Louisiana, and 
in the alternative for a preliminary injunction restrain­
ing the enforcement of the same acts of the State Legis­
lature, and declaring the same unconstitutional. Notice 
of appeal from the judgment of the District Court which 
was entered on November 30, 1960 was filed in that court 
on December 28, 1960. Notice of appeal of the judgment 
of said Court entered on December 21, 1960, was filed 
in that court on January 18, 1961.

The jurisdiction of the Supreme Court to review 
these decisions by direct appeal is conferred by Title 28, 
U.S. Code, Section 1253. The jurisdiction of the Supreme 
Court to review these judgments on direct appeal is sus­
tained by the following cases:

Palmetto Fire Insurance Company v. Conn,
47 S. Ct. 88, 272 US 295, 71 L. Ed. 243;
St. John v. Wisconsin Employment Relations 
Bd., 71 S. Ct. 375, 340 US 411, 95 L. Ed. 386.

QUESTIONS PRESENTED

The following questions are presented by this ap­
peal:

1. Whether or not Acts No. 10 to 14 and 17 to 27, 
inclusive and House Concurrent Resolutions 10, 17, 
18, 19 and 23 of the Thirtieth Extraordinary Ses-



4

sion, or 1st Extra Session, of the Louisiana Legis­
lature of 1960, are constitutional.

2. Whether or not Act No. 2, and House Con­
current Resolutions No. 2, 23 and 28 of the Thirty- 
first Extraordinary Session, or 2nd Extra Session, 
of the Louisiana Legislature, are constitutional.
3. Whether or not a federal district court has any 
right, power or jurisdiction to enjoin the Legis­
lature of Louisiana its members and committees, 
the Governor, Lt. Governor, Treasurer and other 
high officials and executives, and the courts of the 
state from carrying out the provisions of state 
statutes enacted for the maintenance of the safety, 
public order, morals, education and general wel­
fare of the people, which statutes by their terms 
and provisions violate no provision or limitation of 
the Constitution of the United States.

4. Whether or not a federal district court has any 
right, power or jurisdiction to enjoin a state legis­
lature from repealing, modifying or superseding 
statutes enacted by it pursuant to its powers under 
the State Constitution and powers reserved to the 
state under the 10th Amendment to the United 
States Constitution.

5. Whether or not the United States has any right, 
as amicus curiae, to seek and obtain restraining 
orders and injunctions in a proceeding by citizens 
of a state against the legislative, executive and 
judicial officers thereof for the alleged vindication 
of their personal or civil rights, in the absence of 
any intereference or threat of violence to any public 
authority or agency or any official, agent or repre­
sentative of the United States or to any property 
or function of the federal government.



5

6. Whether or not these consolidated actions are 
suits against the state without its consent, by citi­
zens thereof, in violation of the 11th Amendment to 
the United States Constitution in view of the fact 
that plaintiffs seek herein to permanently enjoin 
the legislative, executive, and judicial branches of 
the state government from giving any effect to or 
carrying out the provisions of state statutes re­
pealing or modifying existing laws, or enacting 
new statutes relating to subjects admittedly within 
the police powers of the state, and by their terms 
violative of no provision of the federal constitution.

7. Whether or not a federal court can issue compul­
sory orders and mandatory or prohibitory injunc­
tions to maintain in office former officials of a 
school board whose offices have been abolished, va­
cated, or superseded, and whose powers and func­
tions have been divested and withdrawn by state 
statutes enacted within the scope of the police power 
of the state, and for such purpose can the federal 
court order the state to supply state funds for such 
usurpers and intruders in office?

8. Whether or not a federal court can deny to a 
state legislature its authority, power and duty 
under the State Constitution to make full provision 
for the education of the youth of the state.

STATUTES INVOLVED

Louisiana Acts 10 to 14 inclusive and Acts 17 to 27 
inclusive, and House Concurrent Resolutions No. 
10, 17,18, 19 and 23 of the Thirtieth Extraordinary 
Session, or 1st Extraordinary Session of the Lou­
isiana Legislature of 1960. These acts are set 
forth in full in Appendix D to the Brief of the



6

Orleans Parish School Board, Appellant herein, and 
are made part hereof by reference thereto.

Act No. 2 and House Concurrent Resolutions No.
2, 23, and 28 of the Thirty-first Extraordinary 
Session, or 2nd Extraordinary Session of the Lou­
isiana Legislature of 1960. (Appendix B)

The 10th, 11th and 14th Amendments of the Con­
stitution of the United States.

S T A T E M E N T

Plaintiff in the Bush Case brought suit against 
the Orleans Parish School Board in the year 1952 under 
the “ separate but equal” interpretation of the 14th Amend­
ment and sought admittance for their children into public 
schools reserved for white children in the City of New 
Orleans. The case lay dormant until 1956.

On February 15, 1956, the United States District 
Court for the Eastern Disctrict of Louisiana, ordered the 
Orleans Parish School Board to begin desegregation of the 
public schools in New Orleans with all deliberate speed.(,) 
When no action was taken by the Board under that order, 
the Court ordered the Board to file a desegregation plan 
by May 16, 1960. On May 16, 1960, the Board filed a 
pleading in the record stating that because of various 
Louisiana state laws requiring segregation of the races 
in the public schools, it was unable to file a plan. Where­
upon, on the same day, the Court filed its own plan re-

( 1 ) 138 F. Supp. 366, aff’d 242 F. 2d 156 Cert. Den. 354 US
921.



7

quiring desegregation of the Orleans Parish schools be­
ginning with the first grade in September 1960.

On July 25,1960, the Attorney General, in the name 
of the State of Louisiana, filed a suit in the Civil District 
Court for the Parish of Orleans against the Orleans Parish 
School Board praying for an injunction restraining the 
Board from desegregating the public schools of New 
Orleans. The basis for this injunction was the allegation 
that under Section IV of Action 496 of 1960, LSA-R.S. 
17:347-4, only the Louisiana Legislature has the right to 
integrate the public schools. In due course the injunction 
was issued as prayed for on July 29, 1960.

On August 16, 1960, on motion of the plaintiffs 
in the Bush case, the District Court made the Governor 
of Louisiana and her Attorney General additional parties 
defendant and set the motion for temporary injunction 
for rehearing August 26, 1960. On August 17, 1960, Wil­
liams et al v. Davis, Governor of Louisiana et al. was 
filed. Since in the Williams case the plaintiffs also 
asked for a temporary injunction against the Governor 
of Louisiana and her Attorney General, in addition to 
other state officials, a state judge, and the Orleans Parish 
School Board, the Court consolidated the cases for hearing. 
On the hearing of these issues the Court declared some 
seven acts of the Legislature as unconstitutional, includ­
ing some that were not put at issue. The Court also issued 
an injunction against the Governor enjoining him from 
carrying out the provisions of such laws, against the 
Attorney General from further prosecution of the action



8

in the state court, and against the Treasurer of the State 
of Louisiana prohibiting the latter from withholding school 
books, supplies and funds from the public schools of Orleans 
Parish. <2)

On August 10th, the District Judge extended the 
execution date for the plan of desegregation to Monday, 
November 14, 1960. In the meantime, the Legislature 
of Louisiana met, in extra session, and passed the acts 
and resolutions that are the subject of this appeal. Where­
upon the plaintiffs in the Bush case and in the Williams 
case filed supplemental complaints naming as additional 
parties the following state officials: The Adjutant Gen­
eral, Director of Public Safety, State Superintendent of 
Education, the State Board of Education, the Judge of 
the Civil District Court o f the Parish of Orleans and a 
Committee of the Legislature of Louisiana to which the 
Legislature had assigned all of the powers and duties 
which had been withdrawn from the Orleans Parish School 
Board pursuant to Act Number 18 of the First Extra­
ordinary Session of 1960. A cross claim and third party 
complaint was also filed by the Orleans Parish School 
Board whereby the Legislature of the State of Louisiana 
and the individual members thereof together with the Lt. 
Governor of the State and the Speaker of the House of 
Representatives were also made parties defendant.

On November 18, 1960, a three-judge court was 
convened for the purpose of considering the issues raised 
by the supplemental complaints of the plaintiffs and the

( 2 )  187 F. Supp. 42.



9

cross-complaint of the Orleans Parish School Board. On 
November 30, the court rendered a written opinion which 
is set forth in Appendix A of this brief wherein the Court 
held that Acts 10 to 14, inclusive, Acts 16 to 27, inclusive 
and House Concurrent Resolutions numbers 10, 17, 18, 
19 and 23 of the First Extraordinary Session of the Lou­
isiana Legislature of 1960 were unconstitutional. (Page 26) 
Pursuant to this opinion, the court issued a temporary in­
junction enjoining the Governor and other executives of 
the State of Louisiana, the Legislature of Louisiana and 
its committees, and all other defendants from in any way 
carrying out or enforcing the provisions of these acts of 
the Legislature. (App. A, p. 23)

On December 2, 1960, the Court entered an ex parte 
order requesting the United States to appear in these pro­
ceedings as amicus curiae to accord the court the benefit 
of its views and recommendations with the right to sub­
mit pleadings, evidence, arguments and briefs, and to 
initiate such further proceedings as may be appropriate. 
(App. C, p.70) The United States accordingly filed a pe­
tition as amicus curiae in the Bush case praying for an in­
junction against all defendants, including the Legislature 
of Louisiana, its individual members and committees, from 
enforcing or implementing the Acts of the First Extraordin­
ary Session referred to above, and also from enforcing or 
implementing in any way Act No. 2 passed at the Second 
Extraordinary Session of the Legislature on December 3. 
Plaintiffs in the Bush case also filed a petition for a pre­
liminary injunction against all defendants from enforc­
ing the provisions of the same Acts of the Legislature.



10

Thereafter the Orleans Parish School Board filed 
another cross claim and third-party complaint on Decem­
ber 16 praying for an injunction against all defendants 
from enforcing Act 2 and H.C.R. 2, 23 and 28 of the 
Second Extraordinary Session of the Legislature, all of 
which related to the supervision of the Legislature, and 
a new school board created by it, over the operation of 
the schools and the the handling of school funds for such 
purpose. This cross claim made all banks having deposits 
of state funds in New Orleans, and the City of New 
Orleans parties defendant.

The foregoing issues were heard by a three-judge 
court on December 16 and on December 21, 1960, the 
Court issued a preliminary injunction against the de­
fendants as prayed for and held the Acts of the Legis­
lature unconstitutional. (App. A, p. 51)

None of the Acts of the Legislature, involved in this 
appeal made any provision whatever for segregation in 
the public schools, nor did they contain any reference 
whatever to race or color. In fact, there was no single 
clause or sentence that could be deemed to be in conflict 
with the United States Constitution. These propositions 
are admitted in the opinion of the district judges appealed 
from, wherein they say:

“ As to these measures, then, we are admittedly in 
an area peculiarly reserved for state action. But, 
just as clearly we know that the sole object of the 
legislation is to deprive colored citizens of a right 
conferred upon them by the Constitution of the 
United States.”  (App. A, p. 47)



11

The Court had previously discussed Act 2 of the 
first extra session of the Legislature which was an act 
of interposition declaring the State to be supreme in 
matters relating to the operation of its public schools, 
and that it is therefore not bound by any decisions of the 
federal courts to the contrary. The judges concluded that 
this declaration of interposition set the tone and gave 
substance to all the subsequent legislation, and that all 
of the statutes complained of constituted a “package” of 
segregation measures in conflict with the 14th Amendment. 
This opinion was arrived at in the absence of any evi­
dence of reason or logic that could explain just how, and 
in what manner the so-called package would accomplish 
a violation of the Constitution or would in any way affect 
the orders of the court previously issued.

The Legislature did not submit its Act of Inter­
position to the Court for adjudication and it has not 
appealed from that portion of the lower court’s judgment 
and decree which declared it unconstitutional. In fact 
the act itself declares that the federal courts are not 
competent to pass upon the question as to whether or not 
they have unlawfully encroached upon the sovereignty of 
the state in matters reserved to it exclusively by the Consti­
tution. Nevertheless, none of the subsequent acts of the 
Legislature refer to the Act of Interposition or are made 
dependent on it in any way. Each statute deals with a 
different subject and can stand on its own merits. Any­
one or all of them can be carried out to the letter without 
trespassing upon any rights of the parties to these suits 
and without violating any part of the Constitution or any



12

act of Congress, or any decree of any federal court. There 
is no allegation and no evidence that any attempt what­
ever has been made by any of the defendants to carry out 
even one of these statutory provisions in an unlawful or 
unconstitutional manner.

THE QUESTIONS ARE SUBSTANTIAL

The questions here presented lie in that delicate 
area of comity in state and federal relations so essential 
to our national unity. So long as our present dual form 
of government endures the states are in their sphere as 
independent of the general government as that govern­
ment, within its sphere is independent of the states. The 
14th Amendment did not alter these basic relations.<3)

It is a matter of great importance to all the states 
of the Union to know just how far the federal courts 
can go in usurping powers that relate purely to local af­
fairs, and to what extent they can void state laws that 
relate to the creation of state subdivisions and the election 
or appointment of local officials to manage and operate 
state offices and agencies. The lower court in this case 
has voided every act of the 1960 extra sessions of the 
Louisiana legislature relating to the creation, operation, 
maintenance or financing of the public schools, and has 
done so— not on the ground that the acts themselves are 
unlawful— but on the unfounded and unsupported sup-

( 3 )  Screws v. U.S., 325 US 109, 89 L. Ed. 1506; Brush v. 
Comm. Int. Rev., 300 US 352, 81 L. Ed.: 691; Colorado 
v. Symes, 286 US 510, 76 L. Ed. 1253; White v. Hart, 13 
Wall 646, 20 L. Ed. 685.



13

position that these statutes will and can be used for un­
constitutional objectives. If a court can do this in matters 
of state police and public education, it can by the same 
token usurp state powers in every other field of endeavor 
on suspicion that an unlawful purpose may lurk behind 
the statutes assailed. One of the acts annulled in this 
case relates to the general powers and duties of the state 
police force (Act 16, 1st E.S.) and in no way involves 
public schools. Another Act deletes from existing law 
all provisions requiring compulsory attendance at public 
or private schools. (Act 27 1st E.S.) It would perhaps 
be inappropriate in this jurisdictional statement to dis­
cuss in detail the provisions and objectives of all acts 
voided by the district judges. It is sufficient for the 
present to rest on the lower courts opinion that all o f them 
lie in an area reserved for exclusive state action.

This court has on many occasions ruled that the 
courts cannot inquire into the motives which prompt the 
members of the legislative branch of the government in the 
enactment of laws.<4) Yet the lower court did inquire 
into the purpose and motives of the legislature in an­
nulling the statutes involved in this case.

Another substantial question of national importance 
relates to the power and authority of a federal court to 
enjoin a state legislature, its members, and committees in 
carrying out the functions and duties committed to them 
by the State Constitution.

( 4 )  Barenblath v. U.S., 360 US 109, 132, 3 L. Ed. 2d 1115 
Arizona v. California, 283 US 423, 455, 75 L. Ed. 1154 
and see cases cited in the above opinions.



14

Article 12, Section 1 of the Louisiana Constitution 
of 1921, provides in part, as follows:

“ The Legislature shall have full authority to make 
provisions for the education of the school children 
of this state and/or for an educational system which 
shall include all public schools and all institutions 
of learning operated by State agencies.”

Article 12, Section 10 of the Constitution vests in 
the Legislature the power to create parish school boards. 
The Article provides, in part, that:

“ The Legislature shall provide for the creation and 
election of parish school boards * * *”

Article 9, Section 3 of the Constitution reads in
part:

“ For any reasonable cause, whether sufficient for 
impeachment or not, any officer, except the Gover­
nor or acting Governor, on the address of two-thirds 
of the members elected to each house of the Legisla­
ture, shall thereby be removed.”

By virtue of the adoption of the Constitution of 
the State, the people of Louisiana vested in the Legislature 
the exclusive power over education and the exclusive power 
over the several school boards of the parishes of Louisiana.

Acting pursuant to its Constitutional powers, the 
Legislature of the State of Louisiana enacted Act No. 
100 of 1922, (La. R. S. 17:121), relating to the nomina­
tion, election, qualifications, compensation and vacancies 
of the membership of the Orleans Parish School Board.



15

Again acting pursuant to its constitutional powers, 
the Legislature passed Act No. 25 of the First Extra­
ordinary Session of 1960 repealing Section 63 of Act No. 
100 of 1922, (La. R. S. 17:121), whereby the school board 
was created.

Further acting pursuant to its constitutional powers, 
the Legislature enacted Act No. 17 of the First Extra­
ordinary Session of 1960 which vested in the Legislature 
the powers, duties and functions previously vested in 
parish school boards in parishes having a population in 
excess of 300,000 persons (which included the Parish 
of Orleans).

After repealing the act which created the Orleans 
Parish School Board the Legislature at its second extra 
session passed Act No. 2 which created a new school board, 
provided for the interim appointments of its members 
and prescribed their duties and powers. The validity 
and constitutionality of this act was upheld by the Supreme 
Court of Louisiana on December 15 in the case of Singel- 
man v. Jimmie H. Davis, et al. (Not yet reported).

Undoubtedly the Legislature had the power to create 
the Orleans Parish School Board, and it had the right 
to abolish it, as it has done by acts passed at these 1960 
sessions. The power to abolish an office is as plenary as 
the power to create it. <s) And the right to hold office

( 5 ) Higginbotham v. Baton Rouge, 306 US 535, 538, 83 L. 
Ed. 968, 971; Sanchez v. U.S., 216 US 167, 54 L. Ed. 432 
Keim v. U. S., 306 US 535, 538, 83 L. Ed. 968, 971; 67 
CJS 120 - 121 and cases cited.



16

is not a vested right protected by the Constitution of the 
United States. (6> The matter of control over the officers 
of the state is therefore, exclusively within the province of 
the state, free from interference by the United States.* (7) 
But the effect of the various judgments of the district court 
is to deny to the Legislature any control whatever over the 
schools o f Orleans Parish. As a practical matter the 
Legislature has been enjoined from passing any acts which 
relate to the operation of the schools. The Court is with­
out any jurisdiction or authority to enjoin the Legislature, 
its individuals, and members, in this realm of power re­
served to the state. In fact, the court cannot enjoin the 
Legislature for any reason because the state could there­
by be rendered impotent. If the members of the Legislature 
refused to obey the injunction, could they be imprisoned 
for contempt? Such imprisonment would, of course, de-, 
stroy the legislative department of the state government. 
As this Court stated in Mississippi v. Johnson, 1 US (4 
Wall) 475, 18 L. Ed. 437:

“ The impropriety o f such interference will be clearly 
seen upon consideration of its possible conse­
quences.”

Not only does the judgment of the court below 
take away from the Legislature control over the schools,

( 6 ) Taylor v. Beckham, 178 US 570, 573, 44 L. Ed. 1198, 1199 
Missouri v. Adriano, 138 US 496, 34 L. Ed. 1012.

( 7 )  New Orleans Waterworks v. New Orleans, 164 US 471 
41 L. Ed. 518; Mississippi v. Johnson, 71 US (4 Wall) 
475, 18 L. Ed. 437; Gas & Electric Securities v. Man­
hattan & Queens Corp., 266 F. 625; England v. La State 
Board, 263 F. 2d 261; Fischler v. McCarthy, 117 F. Supp. 
643, a ff’d. 218 F. 2d 164; 16 CJS 725 and cases cited.



17

but it also assumes control over the collection and alloca­
tion of taxes and the use of state funds. H. C. R. No. 23, 
(App. B, p. 62) and H. C. R. No. 28 passed at the Second 
Extra Session (App. B, p. 67) and declared unconstitutional 
by the court, seek to protect the bank accounts of the Legis­
lature and to prevent withdrawal of funds except by the 
state. H. C. R. No. 28 specifically recognizes the state’s 
duty to pay its obligations, and there is no claim that it has 
failed to pay debts of the New Orleans Schools, except for 
the salaries of the defunct school board and its superinten­
dent of schools who has refused to serve under the Legisla­
ture’s direction. The judgment complained of, in effect, 
mandatorily orders the City of New Orleans to turn over to 
former members of the school board, whose offices have 
been vacated, and whose powers have been withdrawn, 
all tax monies collected for public schools. It orders the 
banks and state depositories to honor check and drafts 
signed by men who have been removed from office pur­
suant to valid state laws. It orders the Treasurer of the 
state to furnish school supplies and state funds to usurpers 
and intruders in office, and in general the court has taken 
over the financial affairs of the public schools and en­
trusted their administration to discharged officials and 
employees who have no legal right under state law to 
act.

So the court has brought the status of this proceed­
ing to a point where the State of Louisiana is the real de­
fendant in view of this courts rulings in Hans v. Louisiana, 
134 US 1, 33 L. Ed. 842, and Larson v. Domestic and 
Foreign Corp,, 337 US 682, 3 L. Ed. 1628. This being



18

so the plaintiffs suits against the state, without its con­
sent, should be dismissed as in violation of the 11th Amend­
ment to the Constitution. With state judges, the Legis­
lature, and all the high executive officers of Louisiana 
as defendants, the state in its entirety has been put under 
injunction by federal district court judges. What more 
does it take to make the state the real party defendant? 
The United States is, of course, not a real party plaintiff 
in the suit, since it appears only as amicus curiae.

It is hornbook law that the power of the Legislature 
over state funds is plenary, in respect of which it is vested 
with a large discretion which cannot be controlled by the 
courts. (8)

Still another question o f importance arises in con­
nection with the action of the lower court in granting 
an injunction on the petition of the United States against 
the Legislature and its members. (App. A and C) There 
is no law which would authorize the federal government 
to intervene in a case of this kind, and it does not appear 
herein as an intervenor. The government comes in merely 
as amicus curiae. In that capacity it cannot assume the 
function of a party. It can exercise no control over the 
law suit and has no right to affirmative relief. (9)

( 8 )  C B & Q v .  Otoe County, 16 Wall 667, 675, 21 L. Ed. 
375, 381; Wall v. Close, 203 La. 345, 14 So. 2d 19; 81 CJS 
1145 and cases cited.

( 9 )  City of Denver v. Denver Tramway Corp., 23 F. 2d 
287, 295, Cert. Den. 278 US 616, 73 L. Ed. 539; Moffatt 
Tunnel Imp. Dist. v. D & SI Ry. Co., 45 F. 2d 715, 722, 
Cert. Den. 283 US 837, 75 L. Ed. 1448; R. C. Tway Coal 
Co. v. Glenn, 12 F. Supp. 570, 587 2 Am. Jur. 679, 682.



19

The rights conferred by the 14th Amendment are 
purely personal rights and their enforcement is a matter of 
individual choice. (,°>

This Court has appropriately remarked:

“ It was not intended by the Fourteenth Amendment 
and the Civil Rights Acts that all matters formerly 
within the exclusive cognizance of the states should 
become matters of national concern.” (n >

The United States therefore has no interest which 
would permit it to secure an injunction against these 
defendents. The only pretense offered by it to support 
its claim is that it has “ the duty to represent the public 
interest in the administration of justice and the preserva- 
ion of the integrity of the processes of this (the District) 
Court.”

(Petition Par. 9) There is no allegation, and none 
could be made, that the defendants are threatening “ the 
integrity of the processes of this Court”  or that the district 
court is unable to administer justice unless the might and 
power of the United States is put behind it. This is but 
another example of the constantly expanding tendency 
of the federal government to interfere with local and per­
sonal matters and to usurp the powers and functions of 
the states and the courts. In this connection the court’s

(10) Mitchell v. United States, 313 US 80, 85 L. Ed. 1201; 
Missouri ex rel Gaines v. Canada, 305 US 337, 83 L. Ed. 
208; McCabe v. A T & S F Ry. Co., 235 US 151, 59 L. Ed. 
169.

(11) Snowden v. Hughes, 321 US 1, 88 L. Ed. 497; See also 
Hodges v. U. S., 203 US 1, 51 L. Ed. 65.



20

attention is called to the abortive effort to insert into the 
Civil Rights Act of 1960 a provision that would permit 
the United States Department of Justice to appear in 
court and champion the claims of indivduals for alleged 
violations of their civil rights. Congress refused to go 
along with that proposition in the belief that the federal 
government had no business in such a suit.

To permit the United States to invoke an injunction 
against the Legislature and the highest officials of a 
sovereign state is to sanction a practice which can only 
strain the friendly relations that ought to exist between 
the national sovereign and its constituent, but also 
sovereign, states.

It is submitted that the district court was without 
jurisdiction or power to enjoin the Legislature of Louisiana 
or to interfere with the state’s control over its local affairs 
and the exercise of its public power for the promoting and 
maintenance of public order, education, health, safety, 
morals and general welfare of its people. Furthermore, 
it is submitted that the United States has no right to 
appear as amicus curiae for the purpose of instituting 
action for affirmative relief, and the suits of the Louisi­
ana plaintiffs against the state, without its consent, should 
be dismissed as in violation of the 11th Amendment.



21

The questions presented by this appeal are sub­
stantial, and are of great public importance.

Respectfully submitted,

W. Scott Wilkinson 
P. 0. Box 1707 
Shreveport, Louisiana

Thompson L. Clarke 
St. Joseph, Louisiana

Gibson Tucker, Jr.
Pere Marquette Building 
New Orleans, Louisiana

Russell J. Schonekas 
Pere Marquette Building 
New Orleans, Louisiana

Attorneys for Defendants-Appellants, 
The Legislature of Louisiana, et al.



22

C E R T I F I C A T E

I, W. Scott Wilkinson, one of the attorneys for 
Defendants-Appellants herein, and a member of the 
Supreme Court of the United States, do hereby certify 
that on the 21st day of January, 1961, I served copies 
of the foregoing Jurisdictional Statement on all parties in 
this cause, by mailing a copy in a duly addressed envelope, 
with postage paid to counsel of record for said parties.

This 21st day of January, 1961.

Of Counsel for Defendants-Appellants



23

A P P E N D I X  “A”

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

CIVIL ACTION No. 10566
UNITED STATES OF AMERICA

v.
STATE OF LOUISIANA, ET AL

CIVIL ACTION No. 3630
EARL BENJAMIN BUSH, ET AL

v.
ORLEANS PARISH SCHOOL BOARD, ET AL

CIVIL ACTION No. 10329
HARRY K. WILLIAMS, ET AL

v.
JIMMIE H. DAVIS, ET AL

TEMPORARY INJUNCTION

These cases came on for hearing on motions for 
temporary injunction, restraining the enforcement of 
certain acts and resolutions of the First Extraordinary 
Session of the Louisiana Legislature for the year 1960.

It being the opinion of this Court that all Louisiana 
statutes which would directly or indirectly require segre­
gation of the races in the public schools, or deny them 
public funds because they are desegregated, or interfere 
with the operation of such schools, pursuant to the Orders 
of this Court, by the Orleans Parish School Board, are



24

unconstitutional, in particular, Acts 2, 10, 11, 12, 13, 14, 
16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27, and House 
Concurrent Resolutions 10, 17, 18, 19, and 23;

IT IS ORDERED that the Honorable Jimmie H. 
Davis, Governor of' Louisiana, the Honorable Clarence C. 
Aycock, Lieutenant Governor of Louisiana, the Honorable 
Jack P. F. Gremillion, Attorney General of the State of 
Louisiana, the Legislature of the State of Louisiana, and 
the individual members thereof, Shelby M. Jackson, State 
Superintendent of Education, the Orleans Parish School 
Board, Lloyd J. Rittner, Louis C. Riecke, Matthew R. 
Sutherland, Theodore H. Sheppard and Emile A. Wagner, 
Jr., the members thereof, James F. Redmond, Superin­
tendent of Schools for the Orleans Parish School Board,
A. P. Tugwell, Treasurer of the State of Louisiana, Roy 
R. Theriot, State Comptroller, The Louisiana State Board 
of Education and the individual members thereof, Paul
B. Habans, Gerald Gallinghouse, David B. Gertler, Edward 
F. LeBreton, Charles Diechmann, Ridgley C. Triche, P. 
P. Branton, Welborn Jack, Vial Deloney, William Cleve­
land, E. W. Gravolet, Maj. Gen. Raymond H. Fleming, 
Adjutant General of Louisiana, Murphy J. Roden, Di­
rector of Public Safety of the State of Louisiana, the 
District Attorneys of all Judicial districts of Louisiana, 
as a class, the Criminal Sheriffs of all parishes in Lou­
isiana, as a class, the Mayors of all incorporated munici­
palities of the State of Louisiana, as a class, the Chiefs 
of Police of all incorporated municipalities of the State 
of Louisiana, as a class, and all other persons who are 
acting or may act in concert with them, be, and they are



25

hereby restrained, enjoined and prohibited from enforcing 
or seeking to enforce by any means the provisions of 
Acts 2, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 
24, 25, 26 and 27, and House Concurrent Resolutions 10, 
17, 18, 19 and 23 of the First Extraordinary Session of 
the Louisiana Legislature for 1960, and from otherwise 
interfering in any way with the operation of the public 
schools for the Parish of Orleans by the Orleans Parish 
School Board, pursuant to the Orders of this Court.

IT IS FURTHER ORDERED that copies of this 
temporary injunction shall be served forthwith upon each 
of the defendants named herein.

IT IS FURTHER ORDERED that a copy of this 
temporary injunction shall be served forthwith on The 
Louisiana Sovereignty Commission, through its chairman.

An injunction bond in the sum of $100.00 shall 
be filed herein.

S / Richard T. Rives

UNITED STATES CIRCUIT JUDGE

(Signed) HERBERT W. CHRISTENBERRY

UNITED STATES DISTRICT JUDGE

(Signed) J. SKELLY WRIGHT

UNITED STATES DISTRICT JUDGE

Issued November 30, 1960, 
at New Orleans, Louisiana



26

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

NO. 3630 
CIVIL ACTION

EARL BENJAMIN BUSH, et al,
Plaintiffs,

versus
ORLEANS PARISH SCHOOL BOARD, et al,

Defendants.

NO. 10329 
CIVIL ACTION

HARRY K. WILLIAMS, et al,
Plaintiffs,

versus
JIMMIE H. DAVIS, Governor of the State 

of Louisiana, et al,
Defendants.

NO. 10566 
CIVIL ACTION

UNITED STATES OF AMERICA,
Plaintiffs,

versus
STATE OF LOUISIANA, et al,

Defendants.

RIVES, Circuit Judge, and CHRISTENBERRY and 
WRIGHT, District Judges:

Called into extraordinary session for November 4, 
1960, just ten days before the day fixed by this court for



27

the partial desegregation of the New Orleans public 
schools,(,) the Louisiana Legislature promptly enacted 27

( 1 ) The Orleans Parish school desegregation controversy 
has been in the federal courts for eight years. Since 
the decision in Brown v. Board o f Education, 347 U.S. 
483, in 1954, it has been clear that under the Constitution 
of the United States segregation in the public schools 
of Louisiana cannot lawfully continue, and that all state 
laws in conflict with the Brown holding are null and 
void. Repeatedly, however, the state legislature has en­
acted legislation designed to circumvent the law of the 
land and to perpetuate segregation in the schools of 
Louisiana.
In 1954, the state adopted a constitutional amendment 
and two segregation statutes. The amendment and Act 
555 purported to re-establish the existing state law re­
quiring segregated schools. Act 556 provided for as­
signment of pupils by the school superintendent. On 
February 15, 1956, this court issued a decree enjoining 
the School Board, “ its agents, its servants, its employees, 
their successors in office, and those in concert with 
them who shall receive notice of this order” from re­
quiring and permitting segregation in the New Orleans 
schools. Bush v. Orleans Parish School Board, 138 F. 
Supp. 336, 337, 342, aff’d, 242 F. 2d 156, cert, denied, 
354 U. S. 921.
Not only was there no compliance with that order, but 
immediately there after the legislature produced a new 
package of laws, in particular Act 319 (1956) which pur­
ported to “ freeze” the existing racial status of public 
schools in Orleans Parish and to reserve to the legisla­
ture the power of racial reclassification of schools. On 
July 1, 1956, this court refused to accept the School 
Board’s contention that Act 319 had relieved the Board 
of its responsibility to obey the desegregation order. 
In the words of the court, “Any legal artifice, however 
cleverly contrived, which would circumvent this ruling 
[of the Supreme Court, in Brown v. Board of Education, 
supra] and others predicated on it, is unconstitutional 

on its face. Such an artifice is the statute in suit, “Bush 
v. Orleans Parish School Board, 163 F. Supp. 701, a ff’d 
268 F. 2d 78. See also, Lane v. Wilson, 307 U. S. 268. 
Nevertheless, the legislature continued to contrive cir- 
cumventive artifices. In 1958 a third group of segre­
gation laws was enacted, including Act 256, which em-



28

measures(2) designed to halt, or at least forestall, the 
implementation of the Orleans Parish School Board’s an­
nounced proposal to admit five Negro girls of first grade 
age to formerly all-white schools. The first of these, Act 
2 of the First Extraordinary Session of 1960,<3) is the 
so-called “ interposition”  statute by which Louisiana de­
clares that it will not recognize the Supreme Court’s de­

powered the Governor to close any school under court 
order to desegregate, as well as any other school in the 
system. In the first court test of this law it was struck 
down as unconstitutional by this court on August 27, 
1960. Bush v. Orleans Parish School Board, 187 F. 
Supp. 42.
On July 15, 1959, the court ordered the New Orleans 
School Board to present a plan for desegregation, Bush 
v. Orleans Parish School Board, No. 3630, but there 
was no compliance. Therefore, on May 16, 1960, the 
court itself formulated a plan and ordered desegrega­
tion to begin with the first grade level in the fall of 
1960.
For the fourth time, in its 1960 session, the legislature 
produced a packet of segregation measures, this time 
to prevent compliance with the order of May 16, 1960. 
Four of these 1960 measures — Acts 333, 495, 496 and 
542 — and the three earlier acts referred to above—Act 
555 of 1954, Act 319 of 1956, and Act 256 of 1958—were 
promptly declared unconstitutional by a three-judge 
court on August 27, 1960, in the combined cases of Bush 
v. Orleans Parish School Board and Williams v. Davis, 
and their enforcement by “the Honorable Jimmie H. 
Davis, Governor of the State of Louisiana, and all those 
persons acting in concert with him, or at his direction, 
including the defendant, James F. Redmond,” was en­
joined. Bush v. Orleans Parish School Board, 187 F. 
Supp. 42, 45. At the same time, the efective date of the 
desegregation arder was postponed to November 14, 
1960.

( 2 ) An analysis of the 27 Acts, minus Act 2, and House Con­
current Resolutions 10, 17, 18, 19 and 23 forms Appendix 
B to this opinion.

( 3 ) The full text of Act 2 forms Appendix A to this opinion.



29

cision in Brown v. Board of Education, supra, or the 
orders of this court issued pursuant to the mandate of 
that case. Insofar as it provides criminal penalties against 
federal judges and United States marshals who render 
or carry out such decisions, the Government, by separate 
suit consolidated here for hearing, seeks an injunction 
against the Act. The next seven Acts, Nos. 3 through 9, 
merely repeal statutes earlier ruled on by this court and 
enjoined as unconstitutional.<4)

The remaining seventeen Acts, numbered 10 through 
27, are here assailed on constitutional grounds and a 
temporary injunction against their enforcement is prayed 
for by the Plaintiffs, parents of white school children, in 
the Williams case. Among these are measures purporting 
to abolish the Orleans Parish School Board and transfer 
its function to the Legislature. On November 10, 1960, 
restraining orders were directed to the appropriate state 
officers enjoining them from enforcing the provisions of 
all but one of the statutes pending hearing before this 
court. Nevertheless, apparently still considering itself 
the administrator of the New Orleans public schools, the 
Louisiana Legislature has continued to act in that capacity, 
issuing its directives by means of concurrent resolutions. 
House Concurrent Resolutions Nos. 17, 18, and 19. On 
November 13th, when the enforcement of these resolutions 
was also restrained on motion of the School Board, the 
Legislature retaliated by addressing all but one member 
of the Board out of office. House concurrent Resolution 
No. 23. This action by the Legislature also was the sub-

( 4 ) See Note 1.



30

ject of an immediate temporary restraining order. As 
cross-claimant in the Bush case, the original school case 
filed by parents of Negro children, the School Board now 
asks for a temporary injunction against these most recent 
measures. Finally, the court has before it a motion by 
the School Board to vacate or stay its order fixing Novem­
ber 14, 1960, as the date for the partial desegregation of 
the local schools.

Jurisdiction

In view of the fact that one of the actions involved 
has been pending for more than eight years and that 
several judgments have already been rendered in the 
proceeding both here and on appeal, (S> it would seem 
somewhat late in the day to raise jurisdictional issues. 
But, in view of the eleborate arguments pressed upon us 
we have re-examined the matter.

Pretermitting the question of jurisdiction under 28 
U.S.C. Sec. 1331, it is, of course, plain that jurisdiction 
of the claims in the Bush and Williams cases is vested by 
the provisions of 28 U.S.C. Sec. 1343 (3) and of the suit 
of the United States by 28 U.S.C. Sec. 1345, and that, 
since in all three matters an injunction is sought against 
the enforcement of state laws by officers of the state, a 
court of three judges was properly convened under 28 
U.S.C. Sec. 2281.

Insofar as it is denied that the measures under 
attack work a “ deprivation . . .  of any right . . . secured

( 5 ) See Note 1.



31

by the Constitution of the United States,”  that is a question 
addressed to the merits. For jurisdictional purposes it 
suffices that a substantial claim of deprivation has been 
made. Likewise, the “ interpretation”  defense cannot affect 
the initial jurisdiction of the court, for it must at least 
take jurisdiction to determine whether the state act pur­
porting to insulate Louisiana from the force of federal law 
in the field of public education is constitutionally valid. 
If the statute is not valid, obviously it can have no effect 
on the court’s jurisdiction. The Eleventh Amendment 
argument, made again here, has already been fully an­
swered on a prior appeal in the Bush case. See 242 F.2d 
156. Of course, the Eleventh Amendment has no appli­
cation to the suit of the United States.

Finally, there is no merit in the claim of “ legislative 
immunity” put forward on behalf of the committee of 
the Legislature and its members who are sought to be 
enjoined from enforcing the measures which grant them 
control of the New Orleans public schools. The argument 
is specious. There is no effort to restrain the Louisiana 
Legislature as a whole, or any individual legislator, in 
the performance of a legislative function. It is only in­
sofar as the lawmakers purport to act as administrators 
of the local schools that they, as well as all others con­
cerned, are sought to be restrained from implementing 
measures which are alleged to violate the Constitution. 
Having found a statute unconstitutional, it is elementary 
that a court has power to enjoin all those charged with 
its execution. Normally, these are officers of the executive 
branch, but when the legislature itself seeks to act as



32

executor of its own laws, then, quite obviously, it is no 
longer legislating and is no more immune from process 
than the administrative officials it supercedes. As Chief 
Justice Marshall said in Marbury v. Madison, 5 U.S. (1 
Cranch) 137, 170; “ It is not by the office of the person 
to whom the writ is directed, but the nature of the thing 
to be done, that the propriety or impropriety of issuing 
(an injunction) is to be determined.”

Interposition

Except for an appropriation measure to provide 
for the cost of the special sesson, the first statute enacted 
by the Louisiana Legislature at this Extraordinary Ses­
sion was the interposition act. That was appropriate 
because it is this declaration which sets the tone and 
gives substance to all the subsequent legislation. For the 
most part, the measures that followed merely implement 
the resolve announced in the interposition act to “ maintain 
racially separate public school facilities . . . when such 
facilities are in the best interest of their citizens,”  not­
withstanding “ the decisions of the Federal District Courts 
in the State of Louisiana, prohibiting the maintenance 
of separate schools for whites and negroes and ordering 
said schools to be racially integrated,”  which decisions, 
being “ based solely and entirely on the pronouncements of 
Brown vs. Topeka Board of Education,”  are “ null, void 
and of no effect as to the State of Louisiana.” Signifi­
cantly, the Attorney General, appearing for the State and 
most of its officers, rested his sole defense on this act. 
Without question, the nub of the controversy is in the



33

declaration of interposition. If it succeeds, there is no 
occasion to look further, for the state is then free to do 
as it will in the field of public education. On the other 
hand, should it fail, nothing can save the “ package” of 
segregation measures to which it is tied.

Interposition is an amorphous concept based on the 
proposition that the United States is a compact of states, 
any one of which may interpose its sovereignty against 
the enforcement within its borders of any decision of the 
Supreme Court or act of Congress, irrespective of the fact 
that the constitutionality of the act has been established 
by decision of the Supreme Court, Once interposed, the 
law or decision would then have to await approval by 
constitutional amendment before enforcement within the 
interposing state. In essence, the doctrine denies the con­
stitutional obligation of the states to respect those decisions 
of the Supreme Court with which they do not agree<6) 6

( 6 )  The short answer to interposition may be found in 
Cooper v. Aaron, 353 U. S. 1, 17-18. In view of the ap­
parent seriousness with which the State of Louisiana 
makes the point, however, we will labor it.
In Cooper v. Aaron, the Supreme Court stated:

«***We should answer the premise of the actions of 
the Governor and Legislature that they are not bound 
by our holding in the Brown case. It is necessary 
only to recall some basic constitutional propositions 
which are settled doctrine.

“Article VI of the Constitution makes the Constitu­
tion the ‘supreme Law of the Land.’ In 1803 Chief 
Justice Marshall, speaking for a unanimous Court, 
referring to the Constitution as ‘the fundamental 
and paramount law of the nation’, declared in the 
notable case of Marbury v. Madison, 1 Cranch 137, 
177, that ‘it is emphatically the province and duty 
of the judicial department to say what the law is.’ 
This decision declared the basic principle that the



34

The doctrine may have had some validity under the Articles 
of Confederation. On their failure, however, “ in order 
to form a more perfect union,”  the people not the states, 
of this country ordained and established the Constitution. 
Martin v. Hunter, 14 U.S. (1 Wheat.) 304, 324. Thus the 
keystone of the interposition thesis, that the United States 
is a compact of states, was disavowed in the Preamble to 
the Constitution.(7)

federal judiciary is supreme in the exposition of the 
law of the Constitution, and that principle has ever 
since been respected by this Court and the Country 
as a permanent and indispensable feature of our con­
stitutional system. It follows that the interpreta­
tion of the Fourteenth Amendment enunciated by this 
Court in the Brown case is the supreme law of the 
land, and Art. VI of the Constitution makes it of 
binding effect on the States ‘any Thing in the Con- 
sitution or Laws of any State to the Contrary not­
withstanding.’ Every state legislature and executive 
and judicial officer is solemnly committed by oath 
taken pursuant to Art. VI, cl. 3, ‘to support this 
Constitution.’ ” Cooper v. Aaron, supra.

( 7 ) Of course, even he “compact theory” does not justify 
interposition. Thus, Edward Livingston, Louisiana’s 
noted lawgiver, through an adherent of that theory, 
strongly denied the right of a state to nullify federal 
law or the decisions of the federal courts. While re­
presenting Louisiana in the United States Senate and 
participating in its debates in January, 1830, he stated 
his view “That, by the institution of this government, the 
states have unequivocally surrendered every constitu­
tional right of impeding or resisting the execution of 
any decree or judgment of the Supreme Court, in any 
case of law or equity between persons or on matters, of 
whom or on which that court has jurisdiction, even if 
Such a decree or judgment should, in the opinion of the 
states, be u n c o n s t itu t io n a l“That the alleged right 
of a state to put a veto on the execution of a law of the 
United States, which such state may declare to be un­
constitutional, attend (as, if it exist, it must be) with 
the correlative obligation, on the part of the general 
government, to refrain from executing it ; and the futher



35

Nevertheless, throughout the early history of this 
country, the standard of interposition was raised when­
ever a state strongly disapproved of some action of the 
central government. Perhaps the most precise formula­
tion of the doctrine can be found in the Virginia and 
Kentucky interposition resolutions against the Alien and 
Sedition Acts. Jefferson was the reluctant author of 
the Kentucky resolution, while Madison wrote Virginia’s. 
Jefferson was not proud of his work for he never admitted 
authorship. And Madison, after publicly espousing the 
cause of interposition for a short time, spent much of his 
energy combating the doctrine and finally admitted its 
bankruptcy in these words:

“ The jurisdiction claimed for the Federal Judiciary 
is truly the only defensive armor of the Federal 
Government, or rather for the Constitution and 
laws of the United States. Strip i f  of that armor, 
and the door is wide open for nullification, anarchy 
and convulsion, * * *”  Letter, April 1, 1833, quoted 
in 1 Warren, The Supreme Court in United States. 
History (Revised Ed. 1926), 740.

While there have been many cases which treat of 
segmented facets of the interposition doctrine, in only

alleged obligation, on the part of that government, to 
submit the question to the states, by proposing amend­
ments, are not given by the Constitution, nor do they 
grow out of the reserved powers;” “That the intro­
duction of this feature in our government would totally 
change its nature, make it inefficient, invite to dis­
sension, and end, at no distant period, in separation; and 
that, if it had been proposed in the form of an explicit 
provision in the Constitution, It would have been un­
animously rejected, both in the Convention which fram­
ed that instrument and in those which adopted it.” 
Quoted in 4 Elliot’s Debates 519-520. (Emphasis Added).



36

one is the issue squarely presented. In United States v. 
Peters, 9 U.S. (5 Cranch) 115, the legislature of Pennsyl­
vania interposed the sovereignty of that state against 
a decree of the United States District Court sitting in 
Pennsylvania. After much litigation/8> Chief Justice 
Marshall finally laid the doctrine to rest thusly:

“ If the legislatures of the several states may, at will, 
annul the judgments of the courts of the United 
States, and destroy the rights acquired under those 
judgments, the Constitution itself becomes a solemn 
mockery; and the nation is deprived of the means 
of enforcing its laws by the instrumentality of its 
own tribunals. So fatal a result must be deprecated 
by all; and the people of Pennsylvania, not less than 
the citizens of every other state, must feel a deep 
interest in resisting principles so destructive of the 
Union, and in averting consequences so fatal to 
themselves.”  United States v. Peters, supra, 136.

Interposition theorists concede the validity, under 
the supremacy clause, of acts of Congress and decisions 
of the Supreme Court except in the area reserved for the 
states by the Tenth Amendment. But laws and decisions 
in this reserved area, the argument runs, are by defini­
tion unconstitutional, hence are not governed by the 
supremacy clause and do not rightly command obedience. 
This, of course, is Louisiana’s position with reference to 
the Brown decision in the recent Act of Interposition. 
Quite obviously, as an inferior court, we cannot overrule

( 8 ) For a detailed statement of the case, its background and 
aftermath, see the address by Mr. Justice Douglas re­
printed at 1 F.R.D. 185 and 9 Stan. L. Rev.3.



37

that decision. The issue before us is whether the Legis­
lature (9) of Louisiana may do so.

Assuming always that the claim of interposition 
is an appeal to legality, the inquiry is who, under the Con­
stitution, has the final say on questions of constitution­
ality, who delimits the Tenth Amendment. In theory, the 
issue might have been resolved in several ways. But, as 
a practical matter, under our federal system the only 
solution short of anarchy was to assign the function to 
one supreme court. That the final decision should rest 
with the judiciary rather than the legislature was inherent 
in the concept of constitutional government in which leg­
islative acts are subordinate to the paramount organic 
law, and, if only to avoid, “ a hydra in government from 
which nothing but contradiction and confusion can pro­
ceed,” final authority had to be centralized in a single 
national court. The Federalist, Nos. 78, 80, 81, 82. As 
Madison said before the adoption of the Constitution: 
“ Some such tribunal is clearly essential to prevent an 
appeal to the sword and a dissolution of the compact; and 
that it ought to be established under the general rather 
than under the local governments, or, to speak more 
properly, that it could be safely established under the

( 9 ) It is interesting to note that even Calhoun, whose writ­
ings, in addition to those of Madison, are now invoked 
by Louisiana, did not pretend that the legislature of 
the state had a right to interpose, but held that a popular 
convention within the state was the proper medium for 
asserting state sovereignty. See His “Fort Hill Letter” 
of August 28, 1832, quoted in pertinent part in Miller 
and Howell, “ Interposition, Nullification and the De­
licate Division of Power in a Federal System,” 5 T. Pub. 
L. 2, 31.



38

first alone, is a position not likely to be combated.”  The 
Federalist, No. 39.

And so, from the beginning, it was decided that 
the Supreme Court of the United States must be the final 
arbiter on questions of constitutionality. It is of course 
the guardian of the Constitution against encroachments 
by the national Congress. Marbury v. Madison, supra. 
But more important to our discussion is the constitutional 
role of the Court with regard to State acts. The original 
Judiciary Act of 1789 confirmed the authority of the 
Supreme Court to review the judgments of all state tri­
bunals on constitutional questions. Act of Sept. 24, 1789, 
Sec. 25; 1 Stat. 73, 85. See Martin v. Hunter, supra; 
Worcester v. Georgia, 31 U. S. (6 Peters) 515; Cohens v. 
Virginia, 19 U. S. (6 Wheat) 264; Ableman v. Booth, 62 
U. S. (21 Row.) 506. Likewise from the first one of its 
functions was to pass on the constitutionality of state laws. 
Fletcher v. Peck, 10 U. S. (6 Cranch) 87; McCullough v. 
Maryland, 17 U. S. (4 Wheat.) 316. And the duty of the 
Court with regard to the acts of the state executive is no 
different. Sterling v. Constantin, 287 U.S. 378; Cooper v. 
Aaron, 358 U.S. 1. The fact is that the Constitution itself 
established the Supreme Court of the United States as the 
final tribunal for constitutional adjudication. By defini­
tion, there can be no appeal from its decisions.

The initial conclusion is obvious enough. Plainly, 
the states, whose proceedings are subject to revision by 
the Supreme Court, can no more pretend to review that 
Court’s decision on constitutional questions than an in­



89

ferior can dispute the ruling of an appellate court. From 
this alone “ it follows that the interpretation of the Four­
teenth Amendment enunciated by (the Supreme) Court 
in the Brown case is the supreme law of the land, and 
(that) Art. VI of the Constitution makes it of binding 
effect on the States ‘any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding’.” 
Cooper v. Aaron, supra, 18.

But this is not all. From the fact that the Supreme 
Court of the United States rather than any state authority 
is the ultimate judge of constitutionality, another conse­
quence of equal importance results. It is that the juris­
diction of the lower federal courts and the correctness of 
their decisions on constitutional questions cannot be re­
viewed by the state governments. Indeed, since the appeal 
from their rulings lies the Supreme Court of the United 
States, as the only authoritative Constitutional tribunal, 
neither the executive nor the legislature, nor even the 
courts of the state, have any competence in the matter. 
It necessarily follows that, pending review by the Supreme 
Court, the decisions of the subordinate federal courts on 
constitutional questions have the authority of the supreme 
law of the land and must be obeyed. Assuredly, this is 
a great power, but a necessary one. See United States v. 
Peters, supra, 135, 136.

Apprehensive of the validity of the proposition that 
the Constitution is a compact of states, interposition as­
serts that at least a ruling challenged by a state should 
be suspended until the people can ratify it by constitutional



40

amendment. But this invocation of “ constitutional pro­
cesses”  is a patent subterfuge. Unlike open nullification, 
it is defiance hiding under the cloak of apparent legitimacy. 
The obvious flaw in the argument lies in the unfounded 
insistence that 'pending a vote on the proposed amendment 
the questioned decision must be voided. Even assuming 
their good faith in proposing an amendment against them­
selves, the interpositionists want too much. Without any 
semplance of legality, they claim the right at least tem­
porarily to annul the judgment of the highest court, and, 
should they succeed in defeating the amendment proposed, 
they presume to interpret that victory as voiding forever 
the challenged decision. It requires no elaborate demon­
stration to show that this is a preposterous preversion of 
Article V of the Constitution. Certainly the Constitution 
can be amended “ to overrule”  the Supreme Court. But 
there is nothing in Article Y  that justifies the presump­
tion that what has authoritatively been declared to be the 
law ceases to be the law while the amendment is pending, 
or that the non-ratification of an amendment alters the 
Constitution on any decisions rendered under it .no)

(10) Madison also had occasion to comment on this modified 
interposition: “ . . .We have seen the absurdity of such 
a claim in its naked and suicidal form. Let us turn to 
it as modified by South Carolina, into a right of every 
State to resist within itself the execution of a Federal 
law by it to be unconstitutional, and to demand a con­
vention of the States to decide the question of Con­
stitutionality; the annulment of the law to continue in 
the meantime, and to be permanent unless three-fourths 
of the States concur in overruling the annulment. 
“Thus, during the temporary nullification of the law, 
the results would be the same from (as?) those proceed­
ing from an unqualified nullification, and the result 

of the convention might be that seven out of twenty-



41

The conclusion is clear that interposition is not a 
constitutional doctrine. If taken seriously, it is illegal 
defiance of constitutional authority. Otherwise, “ it 
amounts to no more than a protest, an escape valve 
through which the legislature blows o ff steam to relieve 
their tensions.”  Shuttlesworth v. Birmingham Board of 
Education, N.D. Ala., 162 F. Supp. 372, 381. However 
solemn or spirited, interposition resolutions have no legal 
efficacy. Such, in substance, is the official view of Vir­
ginia, delivered by its present Governor while Attorney 
General. And there is a general tacit agreement
among the other interposing states'*2> which is amply

four States might make the temporary results perm­
anent. It follows, that any State which could obtain 
the concurrence of six others might abrogate any law 
of the United States, constructively, whatever, and give 
to the Constitution any shape they please, in opposition 
to the construction and will of the other seventeen, 
each of the seventeen having an equal right and author­
ity with each of the seven. Every feature in the Con­
stitution might thus be successively changed; and after 
a scene of unexampled confusion and distraction, what 
had been unanimously agreed to as a whole, would not, 
as a whole, be agreed to by a single party. The amount 
of this modified right of nullnfication is, that a single 
State may arrest the operation of a law of the United 
States, and institute a process which is to terminate in 
the ascendancy of a minority over a large majority in 
a republican system, the characteristic rule of which 
is, that the major will is the ruling will, . . Madison, 
on nullification (1835-1836), in IV Letters and Other 
Writings of James Madison (Congress ed. 1865), 409.

(11) See the Opinion of Attorney General Almond rendered 
February 14, 1956, in 1 Race Rel. L. Rep. 462.

(12) Interposition declarations have beeti adopted in Alabama, 
Act 42 of Spec. Sess. 1956; Georgia, H. Res. 185 of 1956; 
Mississippi, Sen. Cone. Res. 125 of 1956; South Carolina, 
Act of Feb. 14, 1956; Virginia, Sen. Joint Res. 3 of 1956; 
Tennessee, H. Res. 1 and 9 of 1957; and Florida Sen.



42

reflected in their failure even to raise the argument in 
the recent litigation, the outcome of which they so much 
deplore. Indeed, Louisiana herself has had an “ interposi­
tion”  resolution on the books since 1956,(,3) and has never 
brought it forth. The enactment of the resolution in statu­
tory form does not change its substance. Act 2 of the 
First Extraordinary Session of 1960 is not legislation in 
the true sense. It neither requires nor denies. It is 
mere statement of principles, a political polemic, which 
provides the predicate for the second segregation package 
of 1960, the legislation in suit. Its unconstitutional pre­
mise strikes with nullity all that it would support.

The Other Legislation

Without the support of the Interposition Act, the 
rest of the segregation “ package” falls of its own weight. 
However ingeniously worded some of the statutes may 
be, admittedly the sole object of every measure adopted at 
the recent special session of the Louisiana Legislature is 
to preserve a system of segregated public schools in defiance 
of the mandate of the Supreme Court in Brown and the 
orders of this court in Bush. What is more, these acts 
were not independent attempts by individual legislators 
to accomplish this end. The whole of the legislation, spon­
sored by the same select committee, forms a single scheme, 
all parts of which are carefully interrelated. The pro-

Conc. Res. 17-XX of Spec. Sess. 1956, and H. Cone. Res. 
174 of 1957. For text of these acts and resolutions, see 
1 Race Rel. L. Rep. 437, 438, 440, 443, 445, 948; 2 id. 228, 
481, 707.

(13) H. Cone. Res. 10 of 1956. The text of the Resolution 
is reproduced in 1 Race Rel. L. Rep. 753.



43

ponents of the “ package”  were themselves insistent on 
so labelling it, and expressly argued that the passage of 
every measure proposed was essential to the success of the 
plan. In view of this, the court might properly void the 
entire bundle of new laws without detailed examination 
of its content. For, as the Supreme Court said in Cooper v. 
Aaron, supra, 17, “ the constitutional rights of children not 
to be discriminated against in school admission on grounds 
of race or color declared by this Court in the Brown case 
can neither be nullified openly and directly by state legis­
lators or state executive or judicial officers, nor nulli­
fied indirectly by them through evasive schemes for segre­
gation whether attempted ‘ingeniously or ingenuously/ ”  
But we shall nevertheless give brief consideration to each 
of the measures enacted.

Re-Enactment of Statutes Previously Declared 
Unconstitutional

Five of the new statutes merely re-enact laws al­
ready voided by this court on August 27, 1960. Bush v. 
Orleans Parish School Board, 187 F.Supp. 42. Act 10 of 
the recent session is, except for the most minor stylistic 
changes, a verbatim copy of Act 541 of 1960(,4) which 
required the Governor to close any school threatened with 
“ disorder, riots or violence.”  We said of that law that 
“ its purpose speaks louder than its words.”  The same 
is true of the present statute. It can fare no better.

Likewise, Acts 11, 12, 13 and 14, all in effect school 
closure measures, are, except in one particular, carbon

(14) Former La. R.S. 17:170, repealed by Act 4 of 1st Extra.
Sess. 1960.



44

copies of statutes held invalid by the decision rendered 
August 27.(,s) The only difference, common to all four 
acts, is the deletion of references to “ segregation” , “ inte­
gration” or “ separate facilities” in the earlier statutes 
and the substitution of the words “ consistent with the 
Constitution and laws of this State or State Board of 
Education policies, rules or regulations.” But this euphem­
ism cannot save the legislation. Indeed, the Interposition 
Act itself makes it clear enough that the policy of the 
state is to maintain segregation in public education de­
spite the mandate of the Supreme Court and the orders 
of this court. And other state laws, still unchallenged, 
expressly promote separation of the races in public 
schools.0 6 5

(15) Act 11 is a re-enactment of Act 256 of 1958, former La. 
R.S. 17:336, repealed by Act 7, 1st Extra. Sess. 1960, 
which authorized the Governor to close any school under 
a court order to integrate.
Act 12 is a re-enactment of Act 495 of 1960, former La. 
R.S. 17:348.1-348.7, repealed by Act 6, 1st Extra Sess. 
1960, which provided that whenever the Governor had 
taken over control of any school because it was under 
an order to integrate he might close all the public 
schools of the state.
Act 13 is a re-enactment of Act 333 of 1960, former La. 
R. S. 17:337, repealed by Act 8, 1st Extra. Sess. 1960, 
which prohibited the furnish-of school books, supplies 
or funds to any integrated school.
Act 14 is a re-enactment of Act 555 of 1954, former La. 
R.S. 17:331-334, which required segregation in public 
schools as an exercise of the state’s police power. Act 
555 was first declared unconstitutional in Bush v. Orleans 
Parish School Board, 138 F. Supp. 336, aff’d, 5 Cir., 242 
F. 2d 156. It was again invalidated by this court on 
August 27, 1960. 187 F. Supp. 42.

(16) See, e.g., La. R.S. 17:391, 1-391.16, in which “The legis­
lature of Louisiana recognizes and hereby affirms *** 
that no child will be forced to attend a school with



45

The New General Measures

In addition to the re-enacted statutes and the acts 
aimed specifically at the New Orleans School Board, a 
group of carefully interlocking measures was adopted 
at the recent Legislature. The pattern worked out is as 
follows: In order to forestall any effective integration
order for this school year, present enrollment on a segre­
gated basis is “ frozen” and transfers are forbidden (Act 
26 ); but, for the future, any school under an order to 
desegregate is immediately closed (Act 22), whereupon 
the local school board ceases to exist (Act 21 ); to carry 
out these directives, by force if necessary, the state police 
are given additional powers and placed under the orders 
of the Legislature (Act 16), and if demonstrators are 
needed, they may now be recruited among the students 
who are no longer compelled to go to school (Act 27) ; to 
assure that an integrated school does close, the new leg­

islation provides that if it continues to operate it shall 
enjoy no accreditation (Act 20), teachers shall lose their 
certification (Act 23), and the students themselves shall 
receive no promotion or graduation credits (Act 24). A 
mere recitation of the scheme suffices. No one dare 
contest the sole purpose of all this legislation is to defeat 
the constitutional right of colored children to attend de­
segregated schools. Since such is their purpose, they are 
all unconstitutional. Gomillion v. Lightfoot, Supreme

children of another race in order to get an education,” 
and provides for grants to the white children of an 
integrated school; and La. R.S. 17:462, 493, and 523, which 
penalize teachers, school bus operators, and other school 
employees who advocate or assist in bringing about in­
tegration.



46

Court, 11/14/60; Cooper v. Aaron, supra, 17; Brown v. 
Board of Education, supra; Lane v. Wilson, supra, 275.

Measures Relating to the Orleans Parish School Board.

Finally, there is a series of measures which pur­
port to abolish the Orleans Parish School Board, culmin­
ating, somewhat inconsistently, in the Resolution which 
“ addresses out of office” four of the five members of that 
Board. In defense of these actions, it is said that they 
concern only the internal political affairs of the state 
which, within the framework of local law, the legislature 
may conduct as it sees fit, and which, accordingly, are 
none of this court’s business. With special emphasis, 
it is argued that the exercise by a state legislature of 
its right to withdraw powers previously delegated by it 
to an inferior political body of its own creation presents 
no federal question, constitutional or otherwise, and, in 
the absence of diversity of citizenship, is not reviewable 
by a federal court. On the other hand, plaintiffs assert 
that these measures, however innocent on their face, were 
specifically designed to deprive them of their constitutional 
rights, and that allegation, which was neither contra­
dicted nor qualified, is supported by the facts. Indeed, 
Acts 17, 18 and 25 which purport to abolish the New 
Orleans School Board were part and parcel of the original 
“ segregation package” introduced on the first day of the 
special session of the Legislature, House Concurrent Reso­
lutions 10, 17, 18 and 19 expressly implemented the earlier



47

statutes/171 and House Concurrent Resolution No. 23 
explicitly states that the School Board members were re­
moved from office for failing to abandon their duties in 
compliance with the Acts and Resolutions just enumerated.

As to these measures, then, we are admittedly in 
an area peculiarly reserved for exclusive state action. But, 
just as clearly, we knew that the sole object of the legis­
lation is to deprive colored citizens of a right conferred 
upon them by the Constitution of the United States. The 
question is whether the protective arm of the Constitution 
reaches into the “ inner sanctum” where the state conducts 
what it considers its strictly private business. The answer 
is eloquently stated in Gomillion v. Lightfoot decided by 
the Supreme Court November 14, 1960. There, in holding 
an act of a state legislature redefining municipal bound­
aries so as to exclude Negro citizens clearly unconstitu­
tional, the Court stated:

“ When a State exercises power wholly within the 
domain of State interest, it is insulated from federal 
judicial review. But such insulation is not carried 
over when state power is used as an instrument for 
circumventing a federally protected right. This

(17) Resolution No. 10 delegated to an eight-man legislative 
committee full control over the New Orleans Schools; 
No. 17 re-transferred that control to the Legislature as 
a whole, converting the committee into an investigative 
body with supoena powers; in No. 18, the Legislature, 
acting as administrator of the New Orleans schools, pur­
ports to fire the local superintendent of schools and the 
School Board’s attorney; and No. 19 declared a school 
holiday for November 14, the day fixed for the de­
segregation of first grade classes in New Orleans, and 
directed the sergeants-at-arms of the Legislature to en­
force the holiday.



48

principle has had many applications. It has long 
been recognized in cases which have prohibited a 
State from exploiting a power acknowledged to be 
absolute in an isolated context to justify the im­
position of an ‘unconstitutional condition.’ What 
the Court has said in those cases is equally applic­
able here, viz: that ‘Acts generally lawful may be­
come unlawful when done to accomplish an unlaw­
ful end, United States v. Reading Co., 226 U. S. 324, 
357, and a constitutional power cannot be used by 
way of condition to attain an unconstitutional re­
sult. Western Union Telegraph Co. v. Foster, 247 
U.S. 105, 114. * * *”

Motion to Vacate

The last matter presented for our consideration 
is the School Board’s plea that we postpone the effective 
date of the order compelling desegregation of first grade 
classes by November 14. The Board suggests that local 
conditions are so disturbed that orderly compliance is 
difficult at this time, especially in view of its own pre­
carious legal and financial position. All this may be 
true, but the history of this litigation leaves some doubt 
about the advisability of further postponing an inevitable 
deadline. Indeed, the date originally set for making a 
start in the direction o f desegregation has already been 
postponed two months and it is far from clear that this 
delay improved conditions. But, in any event, though 
we be persuaded of the School Board’s good faith, there 
can be no question of delaying still longer the enjoyment 
of a constitutional right which was solemnly pronounced 
by the Supreme Court of the United States more than six



49

years ago. As that Court itself said in rejecting a similar 
plea in Cooper v. Aaron, supra, 15-16:

“ One may well sympathize with the position of the 
Board in the face of the frustrating conditions 
which have confronted it, but, regardless of the 
Board’s good faith, the actions of the other state 
agencies responsible for those conditions compel us 
to reject the Bord’s legal position. Had Central 
High School been under the direct management of 
the State itself, it could hardly be suggested that 
those immediately in charge of the school should be 
heard to assert their own good faith as a legal 
excuse for delay in implementing the constitutional 
rights of these respondents, when vindication of 
those rights was rendered difficult or impossible 
by the actions of other state officials. The situ­
ation here is in no different posture because the 
members of the School Board and the Superinten­
dent of Schools are local officials; from the point 
of view of the Fourteenth Amendment, they stand 
in this litigation as the agents of the State.

“ The constitutional rights of respondents are not to 
be sacrificed or yielded to the violence and dis­
order which have followed upon the actions of the 
Governor and Legislature. As this Court said some 
41 years ago in a unanimous opinion in a case in­
volving another aspect of racial segregation: ‘It 
is urged that this proposed segregation will pro­
mote the public peace by preventing race conflicts. 
Desirable as this is, and important as is the pre­
servation of the public peace, this aim cannot be ac­
complished by laws or ordinances which deny rights 
created or protected by the Federal Constitution.’ 
Buchanan v. Warley, 245 U.S. 60, 81. Thus law 
and order are not here to be preserved by depriving 
the Negro children of their constitutional rights.



50

The record below us clearly establishes that the 
growth of the Board’s difficulties to a magnitude 
beyond its unaided power to control is the product 
of state action. Those difficulties as counsel for the 
Board forthrightly conceded on the oral argument 
in this Court, can also be brought under control by 
state action.”

C O N C L U S I O N

For the foregoing reasons, this court denies the 
interposition claim of the State of Louisiana and declares 
Acts 2, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 
24, 25, 26 and 27 and House Concurrent Resolutions 10, 
17, 18, 19 and 23 of the First Extraordinary Session of 
1960 unconstitutional. This court will prepare the decree 
enjoining their enforcement. The motions to dismiss are 
denied. The motion to vacate, or delay the effective date 
of, the order requiring desegregation of the New Orleans 
public schools is likewise denied.

s /  Richard T. Rives
RICHARD^ T. RIVES, Chief Judge 
United States Court of Appeals

s / Herbert W. Christenberry
HERBERT W. CHRISTENBERRYTchief Judge 
United States District Court

s / J. Skelly Wright
J. SKELLY WRIGHT, Judge 
United States District Court.

New Orleans, Louisiana 
NOV. 30, 1960.



51

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

NO. 10566 
CIVIL ACTION

UNITED STATES OF AMERICA 
versus

STATE OF LOUISIANA, ET AL

NO. 3630 
CIVIL ACTION

EARL BENJAMIN BUSH, ET AL 
versus

ORLEANS PARISH SCHOOL BOARD, ET AL

NO. 10329 
CIVIL ACTION

HARRY K. WILLIAMS, ET AL 
versus

JIMMIE H. DAVIS, ET AL 

TEMPORARY INJUNCTION

These cases came on for hearing on motions of 
Earl Benjamin Bush, et al, and the United States, amicus 
curise, for temporary injunction, restraining the enforce­
ment of Act 2 of the Second Extraordinary Session of 
the Louisiana Legislature for the year 1960, and on motion 
of the Orleans Parish School Board for temporary in­
junction restraining the enforcement of House Concurrent 
Resolutions 2, 23 and 28 of the Second Extraordinary



52

Session of the Louisiana Legislature for 1960 and re­
straining certain banks and the City of New Orleans from 
withholding funds belonging to the Board.

It being the opinion of this court that all Louisiana 
statutes which would directly or indirectly require segre­
gation of the races in the public schools, or deny them 
public funds because they are desegregated, or interfere 
with the operation of such schools, persuant to the orders 
of this court, by the Orleans Parish School Board, are 
unconstitutional, in particular, Act 2 and House Con­
current Resolutions 2, 23 and 28;

IT IS ORDERED that the Honorable Jimmie H. 
Davis, Governor of Louisiana, the Honorable Clarence C. 
Aycock, Lieutenant Governor of Louisiana, the Honorable 
Jack P. F. Gremillion, Attorney General of the State of 
Louisiana, the Legislature of the State of Louisiana, and 
the individual members thereof, Shelby M. Jackson, State 
Superintendent of Education, the Orleans Parish School 
Board, Lloyd J. Rittiner, Louis C. Riecks, Matthew R. 
Sutherland, Theodore H. Shepherd, Jr. and Emile A. 
Wagner, Jr., the members thereof, James P. Redmond, 
Superintendent of Schools for the Orleans Parish School 
Board, A. P. Tugwell, Treasurer of the State of Louisiana, 
Roy R. Theriot, State Comptroller, the Louisiana State 
Board of Education and the individual members thereof, 
Paul B. Habans, Gerald J. Gallinghouse, David B. Gertler, 
Edward P. LeBreton, Charles Deichmann, Ridgley C. 
Triche, P. P. Branton, Welborn Jack, Vial Deloney, 
William Cleveland, E. W. Gravolet, the City of New Or­



53

leans, the Whitney National Bank of New Orleans, the 
Hibernia National Bank in New Orleans, the National 
American Bank of New Orleans, the National Bank of 
Commerce in New Orleans, and all other persons who are 
acting or may act in concert with them, be, and they are 
hereby, restrained, enjoined and prohibited from enforcing 
or seeking to enforce by any means the provisions of 
Act 2 and House Concurrent Resolutions 2, 23 and 28 of 
the Second Extraordinary Session of the Louisiana Legis­
lature for 1960, and from otherwise interferring in any 
way with the operation of the public schools for the Parish 
of Orleans by the Orleans Parish School Board, persuant 
to the orders of this court.

IT IS FURTHER ORDERED that the Whitney 
National Bank of New Orleans, the Hibernia National 
Bank in New Orleans, the National American Bank of 
New Orleans, and the National Bank of Commerce in New 
Orleans, their officers, agents and employees, and all per­
sons acting in concert with them, be, and they are hereby 
restrained, enjoined and prohibited from failing or re­
fusing to honor any checks drawn on them by the Orleans 
Parish School Board which are regular on their face, so 
long as the said Board has sufficient funds on deposit to 
cover said checks.

IT IS FURTHER ORDERED that the City of New 
Orleans, its officers, agents and employees, and all persons 
acting in concert with them, be, and they are hereby, re­
strained, enjoined and prohibited from failing or refusing 
to pay the Orleans Parish School Board daily all taxes



54

levied by the Orleans Parish School Board and collected 
by the City of New Orleans.

IT IS FUTHER ORDERED that copies of this 
temporary injunction shall be served forthwith upon each 
of the defendants named herein.

IT IS FURTHER ORDERED that copies of this 
temporary injunction shall be served forthwith on the 
Louisiana Sovereignty Commission, through its Chairman, 
and on the Joint Legislative Committee on Un-American 
Activities of the Louisiana Legislature, through its Chair­
man.

Inasmuch as this temporary injunction is issued 
on the motions of the United States and of the Orleans 
Parish School Board, no bond is required. 28 U.S.C. §2408; 
La. R.S. 13:4581.

/ s /  Richard T. Rives
RICHARD T. RIVES"" Judge 
United States Court of Appeals

/ s /  Herbert W. Christenberry
HERBERT W. CHRISTENBERRY, Chief Judge 
United States District Court

/ s /  J. Skelly Wright
~~J. SKELLY WRIGHT, Judge 

United States District Court

Issued December 21st, 1960 
at New Orleans, Louisiana



55

A P P E N D I X  “B”

ACT NO. 2, 31st EXTRAORDINARY SESSION (2d E.S.)
OF THIS LOUISIANA LEGISLATURE OF 1960

HOUSE BILL NO. 3

BY: MESSRS. FIELDS, LEHMANN 
AND TRICHE

AN ACT

To revive, amend and reenact Section 121 of Title 
17 of the Louisiana Revised Statutes o f 1950, which was 
repealed by Section of Act No. 25 of the first Extra Ses­
sion of 1960, approved November 8, 1960, so as to create 
the School Board of the Parish of Orleans, provide for 
the interim appointment of its members and for the elec­
tion of their successors at the congressional elections in 
the Parish o f Orleans, to fix their terms, to prescribe 
the powers and authority of the School Board of the Parish 
of Orleans, to reserve certain powers to the Legislature 
relative to the public schools, the effect upon this Act of 
the suspension of R. S. 17:121 by House Concurrent Re­
solution No. 10, as amended by House Concurrent Resolu­
tion No. 17, of the first Extra Session of 1960, and to 
repeal all laws or parts of law in conflict with this act 
to the extent only of such conflict.

Be it enacted by the Legislature of Louisiana:

Section 1. That Section 121 of Title 17 of the 
Louisiana Revised Statutes of 1950, which was specifically



56

repealed by Act No. 25 of the first Extra Session of 1960, 
approved November 8, 1960, and, also repealed, insofar 
as said R. S. 17:121 is in conflict therewith, by Act No. 
17 of the first Extra Session of 1960, approved November 
8, 1960, and which R. S. 17:121 was suspended by Section 
6 of House Concurrent Resolution No. 10 of the first Extra 
Session of 1960, as amended by House Concurrent Re­
solution No. 17 of said Extra Session, Section 6 of which 
latter resolution specifically preserved the suspension by 
said Section 6 of House Concurrent Resolution No. 10, 
be revived, amended and re-enacted, so far to read as 
follows:

“ Section 121 A. There is hereby created a school 
board for the Parish of Orleans, to be known and de­
signated ‘School Board of the Parish of Orleans’ to con­
sist of five members, to be elected at large from the Parish 
of Orleans, at the congressional elections in the City of 
New Orleans in accordance with law. The members to 
serve in the interim from the time this act takes effect 
until the next congressional election in the Parish of 
Orleans shall be appointed by the Governor, and there­
after their successors shall be elected as provided in the 
primary and general election laws for other parish school 
boards. The first members elected shall draw lots for 
two terms of two years, two terms of four years, and one 
term of six years, and their successors shall be elected for 
terms o f six years.

“ The School Board of the Parish of Orleans shall 
have power and authority to borrow, receive and dis­



57

burse money. It may levy, collect and receive school taxes 
as now authorized by the Constitution and laws of the 
State of Louisiana. It shall deposit all funds received by 
it in a bank or banks approved as fiscal agents of the state.

“ B. The Legislature of Louisiana reserves to 
itself all powers vested in it by law, relative to the public 
schools of the Parish of Orleans, and particularly by Act 
No. 17 and any other act or resolution passed at the first or 
second Extra Session of 1960, except as to the powers 
and authority herein specifically granted to School Board 
of the Parish of Orleans.”

Section 2. The suspension of laws by Act No. 17 
of the first Extra Session of 1960 and the suspension 
of R. S. 17:51 by House Concurrent Resolution No. 10 
of the said Extra Session, as amended, only insofar as 
said suspensions are in conflict with this act, are hereby 
terminated.

Section 3. All laws or parts of laws in conflict 
herewith are hereby repealed.

Section 4. The necessity for the immediate pas­
sage of this Act having been certified by the Governor to 
the Legislature while in session, in accordance with Sec­
tion 27 of Article III of the Constitution of Louisiana, 
this Act shall become effective immediately upon approval 
by the Governor.



58

H. C. R. #  2 OF THIS 31st EXTRAORDINARY SES­
SION (2d E. S.) OF THE LOUISIANA LEGIS­
LATURE OF 1960.

HOUSE CONCURRENT RESOLUTION NO. 2

BY: MR. RAU

A CONCURRENT RESOLUTION

WHEREAS, the Legislature of Louisiana by Act 
No. 17 of the First Extraordinary Session of 1960 did 
withdraw and reserve unto itself all administrative author­
ity formerly exercised by school boards in parishes hav­
ing a population in excess of 300,000, and

WHEREAS, the Legislature of Louisiana by Act 
No. 18 of the First Extraordinary Session of 1960 did 
entrust financial matters affecting such school boards 
to a board of trustees, and

WHEREAS, the Parish of Orleans has a population 
in excess of 300,000 persons and so the Orleans Parish 
School Board falls within the scope of the Legislative 
acts specified hereinabove, and

WHEREAS, the Legislature of Louisiana by House 
Concurrent Resolution No. 17 did constitute the entire 
body of the Legislature of Louisiana the administrative 
authority for the operation and administration of schools 
in parishes having a population in excess of 300,000, and



59

WHEREAS, the Legislature of Louisiana did, on 
the 14th day of November, 1960, address from office, 
pursuant unto the Constitution of Louisiana, Matthew R. 
Sutherland, Theodore H. Shepard, Jr., Louis G. Riecke 
and Lloyd J. Rittiner, former members of the Orleans 
Parish School Board, and

WHEREAS, acting under guise of temporary re­
straining orders issued against the Legislature of Louisi­
ana by a judge of the United States District Court for 
the Eastern District of Louisiana, New Orleans division, 
which temporary restraining orders violate the constitu­
tion and laws of the U. S. and the Constitution and laws 
of the State of Louisiana and constitute a grave attack 
upon and insult to the sovereignty of the State of Louisiana, 
the above named former members of the Orleans Parish 
School Board, acting in conjunction with Dr. James F. 
Redmond, formerly superintendent of schools o f the Parish 
of Orleans, purport and pretend and exercise the ad­
ministrative authority of the Orleans School Board, and

WHEREAS, the acts of the said former members 
and Dr. Redmond in their attempt to administrate the 
public school system of the Parish of Orleans are ab­
solutely illegal, null and void.

THEREFORE, BE IT RESOLVED by the House 
of Representatives of the Legislature of Louisiana, the 
Senate thereof concurring, that all persons, firms and 
corporations in the State of Louisiana are hereby put 
on notice that the said Matthew R. Sutherland, Theodore



60

H. Shepard, Jr., Louis G. Riecke, Lloyd J. Rittiner and 
Dr. James F. Redmond have no authority to act for the 
Orleans Parish School Board or the public schools of the 
Parish of Orleans and that any attempted acts by these 
individuals are illegal, null and void.

Be It Further Resolved that all banks, lending 
institutions, firms, corporations and individuals are hereby 
put on notice that the above named individuals have no 
authority whatsoever to receive or expend any money, 
funds, credits or assets of any nature whatsoever for or 
on behalf o f the Orleans Parish School Board and that the 
State of Louisiana, through its proper officers, agent or 
political subdivision will hold fully responsible any persons 
firms or corporations who might receive, negotiate, en­
dorse, honor, cash or handle any checks, cash, warrants, 
evidence of indebtedness or asset of any nature whatsoever 
from or through purported authority of Matthew R. Suther­
land, Theodore H. Shepard, Jr., Louis G. Riecke, Lloyd 
J. Rittiner or Dr. James F. Redmond or any of their 
agents, employees or representatives.

Be It Further Resolved that neither the State of 
Louisiana nor any of its political subdivisions, including 
the Orleans Parish School Board, will be liable or reponsible 
for any debts, loans, advances or credits granted at 
the request of or on the purported authority of any of



61

the above named individuals or their agents, employees 
or representatives..

Be It Further Resolved that authenticated copies 
of this resolution be served upon all banking institutions 
authorized to do business in the City of New Orleans by 
a Sergeant at Arms of the Legislature of Louisiana and 
that copies of this resolution be published on three con­
secutive days in all daily newspapers in the City of New 
Orleans and in the official journal of the State of Lousiana.



62

H. C. R. #  23 OF THE 31st EXTRAORDINARY SES­
SION (2d E.S.) OF THE LOUISIANA LEGIS­
LATURE of 1960

HOUSE CONCURRENT RESOLUTION NO. 23

BY: MESSRS. FIELDS,
LEHMANN AND TRICHE

A CONCURRENT RESOLUTION

WHEREAS, by House Concurrent Resolution No. 
10 of the First Extratordinary Session of 1960, the 
Legislature of the State of Louisiana suspended Sections 
51 through 127 of Title 17 and Sections 570 and 571 of 
Title 18, of the 1950 Louisiana Revised Statutes, insofar 
as the creation, powers, duties, functions and existence 
of the School Board for the Parish of Orleans are con­
cerned; and by Act No. 25 of the First Extraordinary 
Session of 1960, effective November 8, 1960, further 
amended said Section 51 of said Title 17 to provide that 
the Legislature shall make provision for the creation and 
election of a School Board for the Parish of Orleans, and 
repealed Section 121 o f Title 17 of the 1950 Louisiana 
Revised Statutes, relative to the existence of a School 
Board for said Parish; and by Act No. 19 of the First 
Extraordinary Session of 1960, effective November 8, 
1960, repealed Section 123 of Title 17 of the 1950 Louisi­
ana Revised Statutes, which provided that the Superinten­
dent of Schools for the Parish of Orleans be Ex-officio the 
Treasurer of the Orleans Parish School Board; and,



63

WHEREAS, by House Concurrent Resolution No. 2 
o f the Second Extraordinary Session of 1960, effective 
November 18, 1960, the Legislature withdrew and reserv­
ed unto itself all administrative authority formerly exer­
cised by School Boards in Parishes having a population in 
excess of 300,000, and by Act No. 18 of the First Extra­
ordinary Session of 1960, effective November 8, 1960, the 
Louisiana Legislature entrusted the financial affairs of 
such School Boards, including the Orleans Parish School 
Board, to a Board of Trustees, appointed by the Legis­
lature, and said House Concurrent Resolution No. 2 futher 
put on notice all persons, firms and corporations, and 
particularly the banks in the State of Louisiana, that the 
former members of the Orleans Parish School Board and 
the former Superintendent thereof have no authority to 
act for or in the name of Orleans Parish School Board 
or to receive or expend any money, funds, credits or 
assets of any nature of said School Board, and that the 
State o f Louisiana, through its proper officers, will hold 
fully responsible such banks, persons, firms or corpora­
tions who might honor, cash or handle any checks, warrants 
or through the purported authority of said former members 
or Superintendent of the Orleans Parish School Board, 
and that neither the State of Louisiana nor the Orleans 
Parish School Board, will be responsible for any debts, 
loans, advances or credits granted on the request or pur­
ported authority of said former members or Superinten­
dent of the Orleans Parish School Board; and,

WHEREAS, by House Concurrent Resolution No. 
17 of the First Extraordinary Session of 1960, effective



64

November 13, 1960, it was provided that the Legislature 
of Louisiana assumes and shall have full control of the 
public school system in parishes containing 300,000 or more 
population, including said public school system in Orleans 
Parish, and through its designated representatives shall 
have full authority to draw warrants against all banks 
and depositories having funds on deposit to defray the 
cost of maintenance and operation of said public school 
system, with authority for the payment of school teachers 
and other personnel, costs of lunch programs and all other 
costs and expenses whatsoever, of maintaining and operat­
ing said school system; and,

WHEREAS, by House Concurrent Resolution No. 
18 of the First Extraordinary Session of 1960, effective 
November 13, 1960, the actions and resolutions of the 
Legislative Committee authorized by House Concurrent 
Resolution No. 10 of the First Extraordinary Session of 
1960, as reflected by the minutes of said Committee’s 
meetings, were approved and adopted by the Legislature, 
except with respect to the retention of the Superintendent 
and Attorney for the Orleans Parish School Board, and 
said Superintendent and Attorney were discharged from 
their respective employments.

NOW, THEREFORE, BE IT RESOLVED by the 
Legislature of Louisiana, the House of Representatives 
and the Senate concurring, that the appointment of Harold 
T. Porter, Earl O’Neal and Walter R. Latapie, to make 
deposits and draw checks or warrants for the withdrawal 
of funds on deposit to the credit of the Orleans Parish



65

School Board or the Louisiana Legislature School Account 
No. 1, be and the same is hereby set aside and terminated.

BE IT FUTHER RESOLVED that in compliance 
with House Concurrent Resolution No. 17 of the First 
Extraordinary Session of 1960, all banks or other de­
positories having custody of any funds credited to or 
standing in the name or account of the Orleans Parish 
School Board for the maintenance and operation of schools 
or school systems, shall transfer said funds to the Legis­
lature of Louisiana in the account under the name of 
“ Louisiana Legislature School Account No. 1” and that 
no funds shall be drawn from said account except upon 
checks or warrants drawn against said account and sign­
ed by two representatives of the Louisiana Legislature, 
to be designated by its Concurrent Resolution, and a certi­
fied copy thereof with the signatures of said representa­
tives served upon and furnished to said banks and de­
positories, and that said banks and depositories shall at 
all times be protected in recognizing as such agents the 
persons to be named in said Concurrent Resolution.

BE IT FURTHER RESOLVED that the Whitney 
National Bank of Orleans, Hibernia National Bank in 
New Orleans, National Bank of Commerce in New Orleans, 
National American Bank of New Orleans, and Bank of 
New Orleans, formerly Progressive Bank and Trust Com­



66

pany, and all other depositories having funds on deposit 
to the credit of the Orleans Parish School Board or Loui­
siana Legislature School Account No. 1, be furnished with 
a certified copy of this resolution as special notice to said 
banks and depositories o f the provisions hereof, and of 
all other Acts and resolutions of the Legislature of Lou­
isiana above referred to.



67

H. C. R. No. 28 OF THE 31st EXTRAORDINARY SES­
SION (2d E. S.) OF THE LOUISIANA LEGIS­
LATURE OF 1960.

HOUSE CONCURRENT RESOLUTION NO. 28

B Y : MESSRS. FIELDS, LEHMANN 
AND TRICHE

A CONCURRENT RESOLUTION

WHEREAS, sums of money in excess of Seven 
Hundred Thousand and no/100 Dollars ($700,000.00) are 
presently illegally on deposit in certain banks in the City 
of New Orleans, Louisiana, to the account of the now 
defunct Orleans Parish School Board; and,

WHEREAS, the now defunct Orleans Parish School 
Board has assumed authority to institute legal proceed­
ings against said Banks seeking to compel recognition 
of the validity of certain orders of payment issued by 
said defunct Board against said accounts for the purpose 
of forcing payment of such orders; and,

WHEREAS, the release of subject sums would be 
detrimental to the best interest of thei public school 
system of the Parish of Orleans, and would be in viola­
tion and disregard of Acts and Resolutions previously 
adopted by the Legislature of the State of Louisiana; and,

WHEREAS, said now defunct School Board has 
instituted its illegal proceedings in a Federal Court which 
has no authority whatsoever over State funds belonging



68

to the Legislature of the State of Louisiana dedicated 
for the purpose of discharging financial obligations in­
curred in the operation of the Orleans Parish School sys­
tem; and,

WHEREAS, this Legislature fully recognizes its 
obligation to provide payment of all sums which in its 
judgment are properly due the former employees and 
legitimate creditors of the now defunct Orleans Parish 
School Board, and in order to discharge such obligation, 
must have the aforementioned deposited sums; and,

WHEREAS, the release of such funds to any party 
other than the State of Louisiana would be inimical to 
compliance with or satisfaction of such obligation; and,

WHEREAS, for the reasons assigned, any pay­
ment made by any Bank for the purpose of honoring any 
checks heretofore or hereafter issued for any purposes 
by the said now defunct School Board, orders of the 
Federal Court now or hereafter to be rendered notwith­
standing, would be in violation, derogation and disregard 
of the oft stated policy and the direct order of the Legis­
lature of the State of Louisiana, and would constitute 
serious injury, damage and monetary loss to the State of 
Louisiana;

NOW, THEREFORE, BE IT RESOLVED, by the 
Legislature of Louisiana, the House of Representatives and 
the Senate concurring, that any and all banks in the 
City of New Orleans, Louisiana, in which funds are on



69

deposit to the account of the now defunct Orleans Parish 
School Board, be and said bank or banks are hereby 
directed to refuse and deny payment of all checks and 
other orders of payment heretofore or hereafter issued 
by said now defunct Orleans Parish School Board, any 
order of any Federal Court to the contrary notwithstand­
ing.

BE IT FURTHER RESOLVED, that any and all 
such banks are hereby warned and further notified that 
the Legislature of Louisiana will hold them to a strict 
accounting and will demand full and immediate indemni­
fication in event of any violation, disregard or failure 
of compliance with this Resolution.

BE IT FURTHER RESOLVED, that copies of this 
Resolution be delivered to such banks in the City of New 
Orleans, Louisiana, as may be deemed necessary by the 
Speaker of the House or Representatives and by the Pres­
ident of the Senate.



70

A P P E N D I X  C

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

NO. 3630 
CIVIL ACTION

EARL BENJAMIN BUSH, ET AL,
Plaintiffs,

versus
ORLEANS PARISH SCHOOL BOARD, ET AL,

Defendants.

NO. 10329 
CIVIL ACTION

HARRY K. WILLIAMS, ET AL, 

versus
Plaintiffs,

JIMMIE H. DAVIS, Governor of the 
State of Louisiana, ET AL,

Defendants.

ORDER DESIGNATING UNITED STATES OF 
AMERICA AS AMICUS CURIAE

It appearing from the verified supplemental com­
plaint of the plaintiffs in Bush, et al v. Orleans Parish 
School Board, et al, from the verified cross complaint and 
third party claim of the defendants in Bush, et al v. Or­
leans Parish School Board, et al, and from the verified 
complaint and supplemenal complaint of the plaintiffs 
in Williams, et al v. Davis, et al, that the defendants in



71

Bush, et al v. Orleans Parish School Board, et al have 
been interfered with, obstructed and impeded in carry­
ing out the orders of this court made and entered on May 
16 and August 30, 1960, in Bush et al v. Orleans Parish 
School Board, et al, and

The defendants in Bush, et al v. Orleans Parish 
School Board, et al having strenuously urged to this 
court in their Motion to Vacate, filed November 17, 1960, 
that they, “ interested solely in the education of the children 
of this parish, find themselves caught and entangled in a 
legal struggle between the Legislature of the State of 
Louisiana on the one hand, and the United States Judic­
iary on the other”  and that the “ resolution of the current 
battle between the State Legislature and the Federal 
Judiciary is far beyond the powers given to the Orleans 
Parish School Board,”  and

The court being of the opinion that the public inter­
est in the administration of justice should be represented 
in these proceedings and that it will be of assistance to 
the court to have the benefit of the views of counsel for 
the United States as amicus curiae, and this court being 
entitled at any time to call upon the law officers of the 
United States to serve in that capacity, now, therefore,

IT IS ORDERED that the United States is hereby 
requested and authorized to appear in these proceedings 
as amicus curiae, by and through the Attorney General 
of the United States and the United States Attorney for 
the Eastern District of Louisiana, to accord the court the 
benefit of its views and recommendations with the right 
to submit to the court pleadings, evidence, arguments and 
briefs, and to initiate such further proceedings as may



72

be appropriate, in order to maintain and preserve the 
due administration of justice and the integrity of the 
judicial processes of the United States.

RICHARD T. RIVES, Chief Judge 
United States Court of Appeals

(Signed) HERBERT W. CHRISTENBERRY 
HERBERT W. CHRISTENBERRY, Chief 
Judge United States District Court

Signed J. SKELLY WRIGHT 
J. SKELLY WRIGHT, Judge 
United States District Court

November 25th, 1960 
Entered December 2, 1960