The Legislature of Louisiana v. Earl Benjamin Bush Jurisdictional Statement
Public Court Documents
February 8, 1961

Cite this item
-
Brief Collection, LDF Court Filings. The Legislature of Louisiana v. Earl Benjamin Bush Jurisdictional Statement, 1961. 14ac44bc-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/71a0ae87-c69e-4435-b3ce-07ce20515b2e/the-legislature-of-louisiana-v-earl-benjamin-bush-jurisdictional-statement. Accessed April 22, 2025.
Copied!
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