Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v Wilson Fleming Jr. Brief on behalf of Appellees

    UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

No. 15,540
BOARD OF SUPERVISORS OF LOUISIANA STATE 

UNIVERSITY AND AGRICULTURAL AND 
MECHANICAL COLLEGE, ET AL.,

Appellants,
versus

ALEXANDER P. TUREAUD, JR., A Minor,
BY ALEXANDER P. TUREAUD, SR.,

His Father and Next Friend,
Appellee.

Appeal from the United States District Court for the 
Eastern District of Louisiana.

PETITION FOR REHEARING AND 
SUPPORTING BRIEF.

FRED S. LeBLANC, 
Attorney General of La., 

W. C. PERRAULT,
First Asst. Atty. Gen’l., 

J. CLYDE PEARCE, 
Asst. Attorney Gen’l.,

J. H. TUCKER, JR., 
FRED BLANCHE, 
ARTHUR O’QUIN, 
VICTOR A. SACHSE,
R. B. SADLER, JR.,

W. SCOTT WILKINSON, 
LEANDER H. PEREZ,
C. C. BIRD, JR.,
L. W. BROOKS,
JAMES R. FULLER,
C. V. PORTER,
H. C. SEVIER,
A. J. SHEPARD, JR., 
GROVE STAFFORD, 
OLIVER STOCKWEL.L, 
WOOD THOMPSON, 
Attorneys for Appellants.

TAYLOR, PORTER, BROOKS,
FULLER & PHILLIPS,

1106 Louisiana National Bank Building, 
Baton Rouge, Louisiana;

WILKINSON, LEWIS & WILKINSON,
P. 0. Box 1707,
Shreveport, Louisiana,

Of Counsel.

Montgomery & Co., “The Brief Specialists” , 430 Chartres St., N. O., La.



SUBJECT INDEX.
Page

PETITION FOR REHEARING .............................  1

CERTIFICATE ...........................................................  6

BRIEF IN SUPPORT OF PETITION FOR RE­
HEARING .............................................................  7-38

PLAINTIFF’S WANT OF CAPACITY TO SUE 7

JURISDICTION ......................................................... 12

APPELLANTS’ RIGHTS TO FURTHER HEAR­
ING ON MOTION TO REINSTATE INJUNC­
TION .....................................................................  24

ERRORS OF PROCEDURE ...............................  28

CLASS ACTION IMPROPER ...............................  30

NO EVIDENCE IN RECORD TO SUPPORT
FINDINGS AND CONCLUSIONS ............... 33

SCHOOL SEGREGATION CASES NOT DECI­
SIVE .....................................................................  36

CONCLUSION .............................................................  38

CERTIFICATE OF SERVICE ...............................  39

CITATIONS.
Cases:

American Book Co. v. Kansas, 103 U. S. 49, 48 L.
Ed. 613 .................................................................  37

Armour & Co. v. Wantock, 323 U. S. 126, 89 L.
Ed. 118 .................................................................  37

Ballard v. United Distillers Co., 28 F. Supp. 633 . 8



Beal v. Holcombe, 193 F. (2d) 384 .......................  17

Becker v. Buder, 79 F. Supp. 315 ...........................  9

Board of Supervisors v. Tureaud, 207 F. (2d) 807 13

Bransford, Ex Parte, 310 U. S. 354, 84 L. Ed.
1249 ........................................................................ 16

Brown v. Board of Education, 347 U. S. 483, 74
S. Ct. 686, 98 L. Ed. 873 ..................................3, 5, 23

Brown v. Sacher, 53 F. Supp. 77, 146 F. (2d) 186 30

Buchele v. Trucking, Inc., 57 F. Supp. 954 ..........  8

Byrns v. Byrns Minors, 111 La. 403, 35 So. 617 . . 12

California Water Service Co. v. Redding, 304 U. S.
252, 82 L. Ed. 1323 ............................................  19, 22

Clorox Co. v. Chloritt Mfg. Corp., 25 F. Supp. 702 30

Coignard v. F. W. Woolworth & Co., (La.), 175 So.
123 .......................................................................... 12

Collins, Ex Parte, 277 U. S. 565, 72 L. Ed. 990 . . .  . 16

Cooper v. American Airlines (C. A., 2), 149 F. (2d)
355, 162 A. L. R. 318 ........................................ 9

Cumberland T. & T. Co. v. La. P. S. C., 260 U. S.
212, 67 L. Ed. 2 1 7 ................................................  17

F. C. C. v. Pottsville Broadcasting Co., 309 U. S.
134, 84 L. Ed. 656 ............................................  26

I I

CITATIONS.
Cases—  (Continued).

Page



m

Fleniken v. Gt. American Co., (C. A., 5), 142 F.
(2d) 938 ...............................................................  27,28

Galdi v. Jones, (C. A., 2), 14 F. (2d) 938 ............... 30

Gilbert v. Mazerat, 121 La. 35, 46 So. 4 7 ............... 12

Goldwyn Pictures v. Howell’s Co., (C. A., 2), 287
F. 100 ...................................................................  27

Gulley v. Interstate Natural Gas Co., 292 U. S. 16,
78 L. Ed. 1088 ..................................................... 18

Hannis Distilling Co. v. Baltimore, 216 U. S. 285,
54 L. Ed. 482 ......................................................... 20

Herzbergs, Inc., v. Ocean Corp., (C. A., 8), 132 F.
(2d) 438 ...............................................................  27

Hewes v. Baxter, 45 La. Ann. 1049, 13 So. 817 . . 12

Illinois Power & Light Co. v. Hurley, (C. A., 8), 49
F. (2d) 681 ......................................................... 28

Imperial Irr. Dist., 38 F. Supp. 770, 136 F. (2d)
539 .........................................................................  35

Koepping v. Monteleone, 143 La. 353, 78 So. 590 . . 12

Levering & Garigues Co. v. Morrin, 289 U. S. 103,
77 L. Ed. 1062 ....................................................  19

Litchfield v. R. R. Co., 74 U. S. 270, 19 L. Ed.
150 .........................................................................  26

Madden Furn. Co. v. Met. Life Ins. Co., (C. A., 5),
127 F. (2d) 837 ................................................  28

CITATIONS.
Cases—  (Continued).

Page



IV

Martin v. Carroll, (La.), 59 So. (2d) 158, 161 . . 12

Matley v. Geisler, 202 F. 738 .................................... 27

Mayes v. Smith, (La.), 11 Rob. 504 .......................  11

McCabe v. AT&SF Ry. Co., 235 U. S. 151, 59 L.
Ed. 169 ................................................................. 31

McGilvra v. Ross, 215 U. S. 70, 54 L. Ed. 96 . . . .  21

Monahan v. Hill, (C. A., 9), 140 F. (2d) 3 1 .......... 35

Oklahoma Gas & Electric Co., et ah, v. Oklahoma
Packing Co., 292 U. S. 386, 78 L. Ed. 1318 18

Orloff v. Hayes, 7 F. R. D. 75 ...............................  8

Pacific Fire Ins. Co. v. Reimer, 45 F. Supp. 703 . . 30, 31

Phillips v. U. S., 312 U. S. 246, 85 L. Ed. 800. . . . 14

Poresky, Ex Parte, 290 U. S. 30, 78 L. Ed. 153 . . 21

Query v. U. S., 316 U. S. 485, 86 L. Ed. 1616 . . . .  14

Ramsey Mfg. Corp., 9 F. R. D. 7 3 ...........................  SO

Rescue Army v. Mun. Court, 331 U. S. 549, 91 L.
Ed. 1666 ..............................................................  15

Roth v. Hyer, (C. A., 5), 142 F. (2d) 227 ............... 28

Sanford F. & T. Co., In Re, 160 U. S. 247, 40 L. Ed.
414 .........................................................................  26

Shannon v. Retail Clerks, (C. A., .7), 128 F. (2d)
553 .........................................................................  30

CITATIONS.
Cases—  (Continued) .

Page



V

Shell Pet. Corp. v. Shore, (C. A., 10), 80 F. (2d)
785 .......................................................................... 28

Slocum v. N. Y. Life Ins. Co., 228 U. S. 364, 57
L. Ed. 879 .............................................................  28

Speed v. Trans. Am. Corp., 5 F. R. D. 5 6 ... 31

Steingut v. Natl. City Bank, 36 F. Supp. 486 . . . .  29

Stilley v. Stilley, 20 La. Ann. 5 3 ...............................  12

Thornton v. Carter, (C. A., 8), 132 F. (2d) 438 . . 27

U. S. v. Brookhaven, 134 F. (2d) 442 ................... 33

U. S. v. Certain Parcels of Land, 121 F. Supp. 268 27

U. S. v. Iriarte, (C. A., 1), 166 F. (2d) 800 . . . . 28

Wichita Falls Junior College v. Battle, 204 F. (2d)
632 .......................................................................... 15

Williams v. Kansas City, 104 F. Supp. 848, 205 F.
(2d) 47 .................................................................  31

Wilson v. Board of Supervisors, 92 F. Supp. 986 . . 32

Statutes:

Civil Code of Louisiana, Articles 334-335 ............... 10

Code of Practice of Louisiana, Article 108 ..........  10

United States Code:
28 U. S. C., 2281-2284 ........................2 ,12 ,13 ,14,23

CITATIONS.
Cases—  (Continued).

Page



VI

Texts:

Corpus Juris Secundum:

5 C. J. S., 1 5 1 2 ....................................................  26

5 C. J. S., 1551 ....................................................  27

5 C. J. S., 1554-5 ................................................  35

5 C. J. S., 1557 ....................................................  27

Federal Practice & Procedure, by
Barron & Holtzoff, Yol. 1, p. 405 ................... 29

Vol. 2, p. 25 .....................  8

Vol. 2, p. 828 ....................  34

Moore’s Fed. Practice, Vol. 3, Par. 17 .2 6 ................. 9, 31
Vol. 3, Par. 23.06 ...................  31

Rules:
Federal Rules of Civil Procedure:

Rule 6 .................................................................. 4,29

Rule 7 ................. ................................................  4,29

Rule 17 .................................................................. 7,9

Rule 23 (a) ........................................................... 31,32

Rule 43 ....................................................................  4, 29

Rule 52 .................................................................3 ,30,33

Rule 65 ....................................................................  4, 30

CITATIONS.

Page



UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

No. 15,540

BOARD OF SUPERVISORS OF LOUISIANA STATE 
UNIVERSITY AND AGRICULTURAL AND 

MECHANICAL COLLEGE, ET AL.,
Appellants,

versus

ALEXANDER P. TUREAUD, JR., A Minor,
BY ALEXANDER P. TUREAUD, SR.,

His Father and Next Friend,
Appellee.

Appeal from the United States District Court for the 
Eastern District of Louisiana.

PETITION FOR REHEARING AND 
SUPPORTING BRIEF.

PETITION FOR REHEARING.

Now come the Defendants and Appellants in the 
above entitled cause and present this petition for rehear­
ing. The opinion and decree of this Court was rendered 
and filed August 23, 1955. By order of the Court an ex­
tension of time for filing this petition was granted to Sep­
tember 23, 1955. Plaintiffs and Appellants now show



2

that this Court erred in its said opinion and decree in the 
following particulars:

( 1) .
In sustaining the order of the District Judge over­

ruling Appellants’ motion to dismiss this action because 
of the incompetency of the Plaintiff to institute and main­
tain the same and to stand in judgment herein. In this 
connection the Appellants show that the status of infants 
or minors in the State of Louisiana and their capacity to 
sue or to be sued is governed by the law of this State; 
and the provisions of the Louisiana Civil Code and the 
Louisiana Code of Practice permit minors to appear in 
Court and stand in judgment only when represented by 
their duly appointed and qualified tutors, and prohibit the 
institution of suits by minors through a “Next Friend” .

( 2) .

In holding that the District Judge was vested with 
jurisdiction to issue an injunction restraining the enforce­
ment of the constitution and statutes of the State of Lou­
isiana and to enjoin officers of the State in the enforce­
ment of orders made pursuant to such State statutes on 
the ground of the unconstitutionality thereof, and in fail­
ing to hold that an application for such an injunction must 
be heard and determined by a District Court of three 
judges in accordance with the provisions of 28 U. S. C., 
Section 2281. This Court was furthermore in error:

A. In holding that this case presents only ques­
tions of fact involving no necessity of deciding the con­
stitutionality of any provision of Louisiana law.



3

B. In holding that the Complaint presents no sub­
stantial Federal question.

C. In holding that the mandate of the Supreme 
Court following its order of May 24, 1954 granting writs 
of certiorari herein and remanding this cause “ for consid­
eration in the light of the segregation cases decided May 
17, 1954, Brown v. Board of Education, etc., and condi­
tions that now prevail”  necessarily carried with it the 
conclusion that the District Judge alone has jurisdiction 
to hear and determine this cause.

D. In holding that the decision of the Supreme 
Court in Brown v. Board of Education and Gebhart v. 
Belton, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873, is de­
cisive of the question here involved.

(3).
In sustaining the action of the District Judge re­

instating the original injunction issued herein without a 
hearing, and without findings of fact and conclusions of 
law as required by Rule 52 (a) of the Federal Rules of 
Civil Procedure, and in denying Appellants’ request that 
Plaintiffs’ motion to reinstate said injunction be fixed for 
hearing and further evidence in accordance with the man­
date of the Supreme Court referred to in Paragraph 2 
above.

(i)-
In upholding the District Judge’s neglect and re­

fusal to follow the requirements of the Federal Rules of 
Civil Procedure in other respects, as follows:



4

A. In failing to follow the provisions of Rule 6 (d) 
requiring the notice and hearing and the service of A ffi­
davits supporting such a motion in advance of the hearing.

B. In disregarding the provisions of Rule 7 (b) 
which would require the Appellee to state with particu­
larity the grounds in support of the motion to reinstate 
the preliminary injunction.

C. In disregarding the provisions of Rule 43 which 
would require the testimony of witnesses in open Court 
or presentation of evidence by Affidavits of the parties 
hereto in determining the issues raised by Plaintiffs’ mo­
tion to reinstate the preliminary injunction in the light 
of the mandate issued by the Supreme Court.

D. In failing to comply with the requirements of 
Rule 65 (a) and (b) which prohibits the reissuance of 
a preliminary injunction without notice to the adverse 
party together with an opportunity to be heard and pre­
sent evidence.

E. In sustaining the order of the District Judge 
issuing a preliminary injunction without the giving of se­
curity as required by Rule 65 (c).

F. In sustaining the order of the District Judge 
granting an injunction without setting forth the reasons 
for its issuance as required by Rule 65 (d).

(5).
In sustaining the District Judge’s order for an in­

junction in favor of all negroes of a similar class as



5

Plaintiff and Appellee. No allegation in the Complaint 
and no proof in the record shows that anyone other than 
plaintiff has sought or will seek the combined courses at 
L.S.U. which Plaintiff desires to pursue.

( 6)-
In sustaining the findings of fact and conclusions 

of law made by the District Judge in his original opinion 
and decree. In this connection Defendants and Appellants 
show that no evidence whatever has been offered by Plain­
tiff and Appellee either on the original hearing or on re­
mand to prove any of the allegations of his Complaint 
and without such evidence there is no support whatever for 
the District Court’s findings and conclusions.

(7 ) .
In holding that questions of fact and of law pre­

sented herein have been decided by the Supreme Court in 
the School Segregation Cases entitled Brown v. Board of 
Education and Gebhart v. Belton, 347 U. S. 483, 74 S. Ct. 
686, 98 L. Ed. 873.

( 8)  .

A newspaper article date-lined at Baton Rouge, 
Louisiana, September 15, 1955, states that plaintiff does 
not intend to register at L.S.U. but will continue his 
courses in education at Xavier University in New Orleans. 
If this be true, the entire litigation has become moot.

WHEREFORE, Appellants pray that the opinion 
and decree herein rendered on August 23, 1955 be recalled 
and that a rehearing be granted to consider the errors 
urged above and on final hearing that an order be issued



6

herein reversing the opinion and decree of the District 
Court and dismissing the suit of the Plaintiffs.

Appellants further pray for all orders and de­
crees necessary and for general and equitable relief.

FRED S. LeBLANC, 
Attorney General of La., 

W. C. PERRAULT,
First Asst. Atty. Gen’l., 

J. CLYDE PEARCE, 
Asst. Attorney Gen’l.,

J. H. TUCKER, JR., 
FRED BLANCHE, 
ARTHUR O’QUIN, 
VICTOR A. SACHSE,
R. B. SADLER, JR.,

W. SCOTT WILKINSON, 
LEANDER H. PEREZ, 
C. C. BIRD, JR.,
L. W. BROOKS,
JAMES R. FULLER,
C. V. PORTER,
H. C. SEVIER,
A. J. SHEPARD, JR., 
GROVE STAFFORD, 
OLIVER STOCKWELL, 
WOOD THOMPSON, 
Attorneys for Appellants.

TAYLOR, PORTER, BROOKS,
FULLER & PHILLIPS,

1106 Louisiana National Bank Building, 
Baton Rouge, Louisiana;

WILKINSON, LEWIS & WILKINSON,
P. 0. Box 1707,
Shreveport, Louisiana,

Of Counsel.

CERTIFICATE.

I HEREBY CERTIFY that the above and foregoing 
Petition For Rehearing is filed in good faith and not for 
the purpose of delay th is____ day of September, 1955.

Of Counsel for Appellants.



7

BRIEF IN SUPPORT OF PETITION FOR REHEARING.

PLAINTIFF’S W A N T  OF CAPACITY TO SUE.

Rule 17 of the Federal Rules of Civil Procedure 
makes it perfectly plain that the capacity of a minor or his 
personal guardian to sue or be sued must be determined 
by the law of the State in which the District Court is held. 
Rule 17 (b) reads as follows:

(b) Capacity to Sue or Be Sued. “ The capacity 
of an individual, other than one acting in a rep­
resentative capacity, to sue or be sued shall be de­
termined by the law of his domicile. The capacity 
of a corporation to sue or be sued shall be deter­
mined by the law under which it was organized.
In all other cases capacity to sue or be sued shall 
be determined by the law of the state in which the 
district court is held.”  * * *

The foregoing Rule without equivocation states that 
the capacity of an individual to maintain a suit such as 
this is determined by the law of his domicile, but if a suit 
is brought by a representative such as a guardian, tutor, 
or “ Next Friend” the capacity of that representative to 
sue or to be sued must be determined by the law of the 
State in which the District Court is held. The Plaintiff 
is a minor domiciled in Louisiana. The representative or 
“ Next Friend”  appearing for him in this litigation is also 
domiciled in Louisiana and the case was tried in the United 
States District Court for the Eastern District of Louisi­
ana. It is therefore apparent that the law of Louisiana 
governs the Plaintiffs’ right to appear in Court and main­



8

tain this suit no matter how the Plaintiff may be de­
scribed.

In commenting on Rule 17 Ban'on and Holtzoff in 
their work on Federal Practice and Procedure, Volume 
2, page 25, state:

“ Before the adoption of the Federal Rules 
of Civil Procedure, a federal court at law gen­
erally determined the capacity of an individual ac­
cording to the law of the state in which the court 
was sitting. Under Rule 17 (b) the law of his 
domicile determines the capacity of an individual, 
other than one acting in a representative capacity, 
to sue or be sued.”

After commenting upon the provision regarding the 
suits by individuals the foregoing authority states on page 
27 (Section 486):

“ Under the third sentence of Rule 17 (b), 
the capacity of persons acting in a representative 
capacity, except federal receivers, to sue or be 
sued is determined by the law of the state in which 
the district court is held.

“ This rule applies to executors and adminis­
trators and to guardians.”

The Rule just stated is supported by the following 
decisions:

Ballard v. United Distillers Co., 28 Fed. Supp.
633;

Orloff v. Hayes, 7 F. R. D. 75;
Buchele v. Trucking, Inc., 57 F. Supp. 954;



9

Cooper v. American Airlines (C. A., 2) 149 F. 
(2d) 355, 162 A. L. R. 318;

Sanders v. Campbell, 73 F. Supp. 112;
Becker v. Buder, 79 F. Supp. 315.

Further commenting on Rule 17 (c) appears in 
Volume 2 Federal Practice and Procedure, Section 488, 
page 37 as follows:

“ Under Rule 17 (c) the general guardian, 
committee, conservator, or other like fiduciary, may 
sue or defend on behalf of an infant or incompetent 
person. This provision does not entitle him to sue 
in any federal court. His capacity to sue or be 
sued is determined by the law of the state in which 
the district court is held.”

See also:
Moore’s Federal Practice, Volume 3, Para­

graph 17.26.

The foregoing authorities establish the proposition 
that the Plaintiffs’ capacity to sue in this case is governed 
by the laws of the State of Louisiana.

Under the law of Louisiana a minor such as Plain­
tiff is utterly wanting in capacity to appear in Court and 
prosecute a suit. The Plaintiff here appears through a 
“ Next Friend” . There is no provision whatever in the 
Louisiana law which would authorize a next friend to 
bring a suit on behalf of a minor. On the contrary the 
law of Louisiana is explicit in the requirement that a 
minor can only appear in Court through the intervention 
of his duly qualified Tutor. In fact the law prohibits a



10

suit by a minor except when such a suit is instituted by 
his duly qualified Tutor in his behalf.

Article 108 of the Louisiana Code of Practice reads 
as follows:

“ Minors, persons interdicted or absent, can­
not sue, except through the intervention or with 
the assistance of their Tutors or Curators.”

Now the provisions of the Louisiana Civil Code make it 
clear that a Tutor is not authorized to act for the minor 
until he has taken an oath that he will faithfully perform 
his trust and letters of tutorship have been issued to him 
by the Judge of the minor’s domicile. Articles 334 and 
335 of the Louisiana Civil Code read as follows:

“ 334 (328). Oath of Tutor— Situs of Im­
movables Given.— The tutor shall, prior to his en­
tering upon the exercise of his duties, take an oath 
before the proper officer, that he will well and 
faithfully fulfill his trust.”

“ 335 (332). Letters of Tutorship— Issu  ̂
ance— Conditions Precedent.— The letters of tutor­
ship shall not be delivered to the tutor, until he 
shall have complied with the law as herein required.

“ Until they shall have been delivered to him, 
he shall not interfere with the administration of the 
property of the minor, except for the purpose of 
preserving it, in cases which admit of no delay.

“ The tutor is not recognized, confirmed or 
appointed, nor is he permitted to act as tutor, until 
the judge renders and signs a decree authorizing 
letters of tutorship to be issued.”



11

The Supreme Court and the Courts of Appeal in 
Louisiana have construed the foregoing Articles of the 
Civil Code and the Code of Practice of Louisiana to require 
the Tutor to take the oath of office and to qualify as Tutor 
before he appears in Court or otherwise represents inter­
ests of his ward. The Rule applies whether the Tutor be 
the father or the mother of the minor.

In the case of Mayes, Tutor, v. Smith, 11 Robinson 
504, the Supreme Court of Louisiana held that natural 
Tutors such as the father or mother of a minor must be 
duly qualified and take the oath of office before appearing 
for the minor in Court, and that a defect in this respect 
is not cured in suing in the names of the minors themselves, 
assisted by their father. In its opinion the Court said:

“ Minors can only sue by their tutor duly 
qualified to act as such. Even the natural tutor 
is required to take an oath before he can do any 
act as such. Civil Code, Art. 328. A  judgment 
pronounced against minors would not be res judi­
cata as to them, without its appearing that the per­
son, assuming to represent them in a judicial pro­
ceedings, had been duly qualified. This defect is 
not cured by suing in the name of the minors them­
selves, assisted by their father. They cannot sue 
in their own names) it is their tutor alone who 
can sue in his name, as tutor.”

The foregoing decision is direct authority for the 
proposition that a minor in Louisiana cannot bring suit 
assisted by his father or “ Next Friend” as the Plaintiff 
seeks to do in this case. This decision has been followed 
many times in other decisions rendered by the Supreme



12

Court and the Appellate Courts in Louisiana, including 
the following:

Mitchell v. Cooley, 12 Rob. 636;
Stilley v. Stilley, 20 La. Ann. 63;
Hewes v. Baxter, 45 La. Ann. 1049, 13 So. 817;
Byrns v. Byrns Minors, 111 La. 403, 35 So.

617;
Gilbert v. Mazerat, 121 La. 35, 46 So. 47;
Koepping v. Monteleone, 143 La. 353, 78 So.

590;
Coignard v. F. W. Woolworth & Co., 175 So.

123;
Martin v. Carroll, 59 So. (2d) 158, 161.

In view of the foregoing it is respectfully submitted 
that the Court erred in failing to hold that Plaintiff is 
without right or capacity to institute this suit and stand in 
judgment under the authorities cited. Plaintiffs’ suit 
should be dismissed.

JURISDICTION.

The District Judge assumed jurisdiction of this 
case when the case was first heard without taking the 
steps required of him pursuant to the requirements of 28 
U. S. C. 2284. When the case was remanded by the Su­
preme Court for further consideration in the light of the 
School Segregation Cases and conditions that now prevail 
the District Judge proceeded alone and without further 
trial or evidence reinstated the preliminary injunction 
without calling a Three-Judge Court as required by law.



13

There is no question but that the present proceeding 
falls exactly into the pattern prescribed by Section 2281 
of Title 28 of the United States Code. The Plaintiff 
seeks and the District Court granted an injunction re­
straining the enforcement of the constitution and statutes 
of the State of Louisiana and the order of one of its admin­
istrative Boards, by restraining the action of an officer 
of the State in the execution thereof. Section 2281 pro­
hibits the granting of any such injunction on the ground 
of the constitutionality of such state laws unless the ap­
plication therefor is heard and determined by a District 
Court of three Judges under Section 2284 of Title 28 of 
the Code. On the first appeal this Court sustained De­
fendant and Appellants’ jurisdictional plea. Board of 
Supervisors v. Tureaud, 207 F. (2d) 807. The Supreme 
Court granted certiorari and vacated the judgment of this 
Court and remanded the case for further consideration in 
the light of the Segregation Cases and conditions that now 
prevail.

Up to this moment no hearing has ever been held 
by the statutory Court required by U. S. C. 28:2281 on 
any question presented in this case. All of Defendants’ 
and Appellants’ preliminary pleas and motions have been 
heard by a single Judge. The merits of the Plaintiffs’ 
application for an interlocutory injunction have been heard 
and decided by one Judge alone. This Court considered 
only the Jurisdictional question on the first appeal and 
sustained Defendants’ and Appellants’ objection on this 
score. The United States Supreme Court rendered no 
opinion on any particular question presented on certiorari. 
It merely remanded the cause for further proceedings in



14

the light of the School Segregation Cases and conditions 
that now prevail.

This Court in its last opinion which is the subject 
of this application sustained the District Court’s action 
in holding that the case presents only fact issues involv­
ing no necessity for deciding the constitutionality of any 
provision of Louisiana law. There is nothing in the 
United States Code which would substantiate this conclu­
sion. Sections 2281 to 2284 of Title 28 of the Code make 
no distinction between questions of fact and questions 
of law when Federal Courts are called upon to issue in­
junctions against State officials exercising their duty un­
der State statutes when the Complaint is that the stat­
utes violate some provision of the Federal Constitution. 
Questions of fact must of necessity be decided in any case 
where Complaint is made that State action is violative 
of the Federal Constitution and the decision frequently 
turns on questions of fact rather than questions of law.

Neither wording of the United States Code nor the 
reason for the Articles requiring a Three-Judge Court in 
an action of this kind justify the elimination of the Three- 
Judge Court simply because the case depends upon ques­
tion of fact. As stated by the Supreme Court in Phillips 
v. United States, 312 U. S. 246, 251-253, 85 L. Ed. 800, 
805-6:

“ The crux of the business is procedural pro­
tection against an improvident state-wide doom by 
a Federal Court of a state’s legislative policy. This 
was the aim of Congress and this is the reconciling 
principle of the case.”



15

The situation here is exactly like that described by 
the Supreme Court in Query v. United States, 316 U. S. 
486, 490, 86 L. Ed. 1616, 1620:

“ Here a substantial charge has been made 
that a State statute as applied to the Complainants 
violates the constitution. Under such circum­
stances we have held that relief in the form of an 
injunction can be afforded only by a Three Judge 
Court.”

In our supplemental brief of this appeal we cited 
a long list of cases decided by the Supreme Court which, 
would require a Three-Judge Court in a case of this kind. 
(Pages 3-4). In none of these cases did the Supreme 
Court of the United States rule that a Three-Judge Court 
is unnecessary where the case involves only questions of 
fact in order to determine whether or not the action 
sought to be restrained is violative of the Federal Consti­
tution. We know of no decisions of the Supreme Court 
which so hold.

The dissenting opinion of this Court on the first 
appeal did cite the case of Wichita Falls Junior College 
District v. Battle, 204 F. (2d) 632, 634 on this point. 
The Court cited three Supreme Court cases and one case 
decided by this Circuit, but none of these decisions are in 
point.

The case of Rescue Army v. Municipal Court, 331 
U. S. 549, 91 L. Ed. 1666 makes no statement that a Three- 
Judge Court may be refused where the issues present 
questions of fact. That case involved a municipal ordi­
nance not a state law, and the appeal was taken from an 
order of a State Court denying a writ of prohibition



16

against a pending prosecution for violation of municipal 
ordinances governing the solicitation of contributions for 
charity. It was therefore not an injunction case within 
the purview of 28 U. S. C. 1281, et seq. No question was 
raised as to whether or not a Three-Judge Court was re­
quired.

In Ex Parte Bransford, 310 U. S. 354, 60 S. Ct. 
947, 84 L. Ed. 1249, no attack whatsoever was made on the 
constitutionality of a State statute. That was a tax case 
wherein it was alleged that certain assessments were void 
because they were unauthorized by an Arizona statute. 
The reason for the Court’s holding that a Three-Judge 
Court was unnecessary reads in part as follows:

“ It is necessary to distinguish between a pe­
tition for injunction on the ground of the uncon­
stitutionality of a statute as applied, which requires 
a three-judge court, and a petition which seeks an 
injunction on the ground of the unconstitutionality 
of the result obtained by the use of a statute which 
is not attacked as unconstitutional. The latter pe­
tition does not require a three-judge court. In 
such a case the attack is aimed at an allegedly 
erroneous administrative action. Until the com­
plainant in the district court attacks the constitu­
tionality of the statute, the case does not require 
the convening of a three-judge court, any more 
than if the complaint did not seek an interlocutory 
injunction.”

Ex Parte Collins, 277 U. S. 565, 48 S. Ct. 585, 72 
L. Ed. 990, involved the validity of a municipal ordinance.



17

No state statute was involved and the Court accordingly 
held that three Judges were not required, saying:

“ The suit is not one to restrain ‘the enforce­
ment, operation, or execution’ of a statute of a 
state within the meaning of § 266. That section 
was intended to embrace a limited class of cases of 
special importance and requiring special treatment 
in the interest of the public. The lower courts have 
held with substantial unanimity that the section 
does not govern all suits in which it is sought to re­
strain the enforcement of legislative action, but 
only those in which the object of the suit is to re­
strain the enforcement of a statute of general ap­
plication or the order of a state board or commis­
sion. Thus, the section has long been held in­
applicable to suits seeking to enjoin the execution 
of municipal ordinances, or the orders of a city 
board.”

Similarly, Beal v. Holcombe, 193 F. (2d) 384, de­
cided by this Court, involved the constitutionality of a mu­
nicipal ordinance of the City of Houston, Texas. No state 
statute was involved and for that reason three Judges 
were not required to determine the issues in the case.

If the real purpose of the Three-Judge statute was 
“ to prevent the improvident granting of such injunctions 
by a single Judge, and the possible unnecessary conflict 
between Federal and State authorities, always to be de­
preciated” as stated by Chief Justice Taft in Cumberland
T. & T. Company v. La. Public Service Commission, 260
U. S. 212, 216-218, 67 L. Ed. 217, 222-223 then it is just 
as necessary to prevent the improvident granting of such



18

an injunction on questions of fact as it would be on ques­
tions of law. Louisiana will suffer from this Federal in­
terference in its State-wide policies whether the reason 
be findings of facts or conclusions of law.

Another reason assigned by this Court for over­
ruling Appellant’s plea to the jurisdiction is that no sub­
stantial Federal question is presented. If no substantial 
Federal question is presented then the case does not belong 
in the Federal Courts at all. Unless the Defendants and 
Appellants are violating some provision of the Federal 
Constitution by seeking to enforce a State law that is re­
pugnant thereto then there is no authority whatever for 
a Federal injunction against the actions of the Defendants. 
A substantial Federal question is presented whether it be 
a question of fact or a question of law. The federal ques­
tion calls for a decision as to whether or not the Defend­
ants acting under State law are violating any of the 
Plaintiff’s rights secured to him by the Federal Consti­
tution. And this question is precisely the kind of ques­
tion envisaged by 28 U. S. C. 2281. In our supplemental 
brief on this appeal beginning at page 12, we pointed out 
a number of decisions of the Supreme Court which per­
mit the District Judge, acting alone, to dismiss an appli­
cation for an interlocutory injunction if the Plaintiff’s pe­
tition fails to set forth a valid constitutional objection to a 
State statute. In this connection we discuss the following 
cases:

Gulley v. Interstate Natural Gas Co., 292 U. 
S. 16, 78 L. Ed. 1088;

Oklahoma Gas & Electric Co., et al, v. Okla­
homa Packing Co., 292 U. S. 386, 78 L. 
Ed. 1318;



19

California Water Service Co. v. City of Red­
ding, 304 U. S. 252, 82 L. Ed. 1323.

The last decision referred to above was cited in 
the concurring opinion by Judge Rives on this appeal, but 
neither that case nor the other cases cited sustained the 
proposition that a District Judge may proceed alone to 
issue an injunction restraining State action and that three 
Judges are not required if it plainly appears from the 
complaint that a Federal Constitutional provision has 
been violated or that previous decisions of the Supreme 
Court have clearly indicated that the conduct of the De­
fendants complained of constitute a clear violation of the 
Federal Constitution. We will briefly discuss the cases 
cited in the concurring opinion of this Court on this sub­
ject.

Levering & Garigues Co. v. Morrin, 289 U. S. 103j 
77 L. Ed. 1062 was a case where the jurisdiction of the 
Court was based on diversity of citizenship and an inter­
ference with Interstate Commerce which the Court found 
to be purely local in character. No question whatever was 
raised as to the necessity of calling a Three-Judge Court.

On the face of the Complaint itself the Court found 
that no facts were alleged which would support the claim 
of diversity or the charge that there was an interference 
with Interstate Commerce. Jurisdiction was therefore de­
clined and the suit dismissed. The Court stated:

“ The circuit court of appeals reversed the de­
cree of the district court, holding that the allega­
tions of the bill were insufficient to establish juris­
diction on the ground of diversity of citizenship, 
and that the case having failed on the federal ques­



20

tion, the court was without power to consider the 
non-federal question because it was asserted in an 
independent cause of action. * * *

“ If the bill or the complaint sets forth a sub­
stantial claim, a case is presented within the fed­
eral jurisdiction, however the court, upon con­
sideration, may decide as to the legal sufficiency 
of the facts alleged to support the claim. But juris­
diction, as distinguished from merits, is wanting 
where the claim set forth in the pleading is plainly 
unsubstantial.”

Hannis Distilling Company v. Baltimore, 216 U. S. 
285, 54 L. Ed. 482 involved the legality of a tax imposed 
by the State of Maryland on distilled spirits. No question 
was raised as to the necessity for a hearing by a Three- 
Judge Court. The Court dismissed the case for want of 
jurisdiction saying:

“A writ of error directly from this court 
was prosecuted upon the assumption that questions 
under the Constitution of the United States were 
involved which gave a right to an immediate resort 
to this Court for their solution. Upon the correct­
ness of such assumption our jurisdiction depends.
The assumption however, may not be indulged in 
simply because it appears from the record that a 
Federal question was averred, if  such question be 
obviously frivolous or plainly unsubstantial, either 
because it is manifestly devoid of merit, or because 
its unsoundness so clearly results from the previous 
decisions of this court as to foreclose the subject 
and leave no room for the inference that the ques-



21

tions sought to be raised can be the subject of con­
troversy.”

McGilvra v. Ross, 215 U. S. 70, 54 L. Ed. 96 raised 
no question concerning the calling of a Three-Judge 
Court. The case involved the validity of United States 
patents to lands which under prior decisions of the Court 
belonged to the State of Washington. Because of the fact 
that the Complaint failed to set forth a substantial ques­
tion the Supreme Court held that the District Court was 
without jurisdiction and should dismiss the case saying:

“ It follows from these views that the Cir­
cuit Court of Appeals rightly decided that the ques­
tions presented by the bill are no longer open to 
discussion, and that the Circuit Court was without 
jurisdiction.”

Ex Parte Poresky, 290 U. S. 30, 78 L. Ed. 152 was 
a mandamus proceeding for the hearing of Plaintiff’s 
Complaint by a Three-Judge Court. The Complaint had 
been dismissed because the allegations set forth no sub­
stantial Federal question. In sustaining the District 
Judge, the Supreme Court said:

“ The District Judge recognized the rule that 
if  the court was warranted in taking jurisdiction 
and the case fell within § 266 of the Judicial Code, 
a single judge was not authorized to dismiss the 
complaint on the merits, whatever his opinion of 
the merits might be. Ex parte Northern P. R. Co.,
280 U. S. 142, 144, 74 L. Ed. 233, 234, 50 S. Ct. 70; 
Stratton v. St. Louis, S. W. R. Co., 282 U. S. 10, 15,
75 L. Ed. 135, 138, 51 S. Ct. 8. But the provision 
requiring the presence of a court of three judges



22

necessarily assumes that the District Court has 
jurisdiction. In the absence of diversity of citizen­
ship, it is essential to jurisdiction that a substantial 
federal question should be presented. ‘A substantial 
claim of unconstitutionality is necessary for the 
application of § 266.’

“ The District Judge clearly has authority to 
dismiss for the want of jurisdiction when the ques­
tion lacks the necessary substance and no other 
ground of jurisdiction appears. Such was his au­
thority in the instant case, in view of the decisions 
of this Court bearing upon the constitutional au­
thority of the State, acting in the interest of public 
safety, to enact the statute assailed.”

Similarly in the case of California Water Service 
Company v. City of Redding, 304 U. S. 252, 82 L. Ed. 1323, 
the District Judge found that the Federal question sought 
to be raised was identical with that which had been pre­
sented to the Supreme Court and decided by that Court 
to be without merit. The Court affirmed the order of the 
District Judge dismissing the case for lack of jurisdic­
tion.

The foregoing decisions are all authority for the 
proposition that if no substantial question is presented by 
the Complaint or the Federal question presented has been 
decided adversely to the Complainant then the Federal 
Courts do not have jurisdiction and the case must be dis­
missed. None of these decisions are authority for the 
proposition that a complaint which sets forth a substantial 
Federal question which has been previously sustained by 
the Court, and the conditions outlined in 28 U. S. C.



23

2281 exist, the District Judge may refuse or neglect to call 
a Three-Judge Court.

In every case where the Courts have held that no 
substantial Federal question is presented by the pleadings 
they have sustained a plea to the jurisdiction dismissed the 
suit. In no case has the Court assumed jurisdiction and 
issued an injunction where it found that no substantial 
Federal question was presented. This Court has simply 
misinterpreted the purpose and the effect of the rulings 
of the Supreme Court on this subject.

This Court likewise is in error in holding that the 
remand of this case by the Supreme Court necessarily car­
ried with the mandate a holding that the matters for con­
sideration and decision were within the jurisdiction of a 
single District Judge and did not require the summoning of 
a Three-Judge Court. The case has never been argued 
in the Supreme Court of the United States nor were there 
any briefs filed in that Court except in connection with 
the petition for a writ of certiorari. The wording of the 
mandate makes it perfectly clear that the Supreme Court 
gave no consideration whatever to the technical questions 
involved but was only concerned with a further hearing 
of the case in the light of the Supreme Court’s decision in 
Brown v. Board of Education, 347 U. S. 483. It is signifi­
cant that in the case just referred to and three other com­
panion cases that comprised what have been called the 
School Segregation Cases all of the appeals from the Dis­
trict Courts involved cases wherein three Judges had 
decided the matters pursuant to 28 U. S. C., et seq. If the 
summoning of three Judges to decide the School Segrega­
tion cases in the Federal District Courts had been a wrong



24

procedure the Supreme Court would surely have com­
mented on this fact. In view of the fact that there were 
many other cases pending on certiorari in the Supreme 
Court involving segregation of the races in matters of 
recreation, transportation and the like as well as segrega­
tion in education, and all of these cases were remanded 
without hearing to the District Courts from whence they 
came for further hearing “ in the light of the School Seg­
regation Cases and conditions that now prevail” , it is ap­
parent that the Supreme Court merely intended that there 
should be a wholesale retrial of all segregation cases so as 
to give consideration to the sociological and psychological 
findings of the Court in the School Segregation cases. No 
questions were raised concerning a Three-Judge Court 
in the School Segregation Cases. No mention of the need, 
or lack of necessity, for such a Court was commented upon 
in the Court’s decision, and there is nothing in any of 
the mandates in the Supreme Court which would indicate 
that that Court was passing upon this particular point.

APPELLANTS’ RIGHT TO FURTHER HEARING ON
MOTION TO REINSTATE INJUNCTION.

Following the remand of this case to the District 
Judge Plaintiff’s counsel filed the following motion:

MOTION TO REINSTATE PRELIMINARY 
INJUNCTION.

“ Plaintiff, pursuant to an order of the 
United States Supreme Court, entered November 
16, 1953, and the order of the United States Cir­
cuit Court of Appeals for the Fifth Circuit entered 
November 23, 1953, in the above entitled cause, 
moves the Court to reinstate its temporary or pre-



25

liminary injunction issued herein against the de­
fendants on September 11, 1953.”

This motion was fixed for argument for the regu­
lar motion day of the District Court. On such days the 
Court listens only to arguments and does not sit for the 
trial of cases. In this particular matter the Court lis­
tened only to argument of Appellant’s attorneys on the 
question as to whether or not the decision of the Supreme 
Court required the reinstatement of the original injunc­
tion. On the argument of this question Appellant’s coun­
sel called the Court’s attention to the fact that the man­
date of the Supreme Court required a further hearing in 
the case giving due regard to the decision of the Su­
preme Court in the School Segregation Cases and “ con­
ditions that now prevail” . Appellant’s counsel argued 
that the motion should be fixed for trial and further 
evidence in view of the wording of the Mandate of the 
Supreme Court. The District Judge took the matter 
under advisement and instead of fixing the motion for 
trial and the taking of further testimony as requested, 
issued an order granting the motion to reinstate the in­
junction without any further evidence or any further 
hearing. The District Judge obviously took the position 
that the mandate of the Supreme Court required this ac­
tion. Judge Cameron in his dissenting opinion in this 
case has brought out very forcefully that “ if the Supreme 
Court had thought that the District Judge had nothing but 
the perfunctory duty of reinstating the injunction, it 
would have been simple to reverse our (this Court’s) de­
cision with directions that the judgment of the District 
Court be reinstated.” Instead of doing that the Supreme 
Court sent the case back to this Court and this Court



26

sent it back to the District Court with directions to give 
further consideration to the merits of the case in the light 
of the Supreme Court’s ruling in Segregation Cases and 
in the light of existing conditions. As the dissenting 
Judge pointed out, we cannot believe that “ the most vital 
provision in the Supreme Court’s order was the product of 
inadvertence.”  As he says such an assumption would 
convict this Court also of inserting words in its own 
solemn legal mandate which were entirely devoid of mean­
ing or significance.

The Supreme Court has repeatedly held that it is 
the duty of the Lower Court on remand of a case to obey 
the directions contained therein. As stated in 5 C. J. S., 
1512, Section 1966:

“ It is the duty of the Lower Court, on the re­
mand of the cause, to comply with the mandate of 
the Appellate Court and to obey the directions 
therein, without variation.”

The foregoing quotation is supported by the follow­
ing decisions for the United States Supreme Court:

In re: Sanford F. & T. Company, 160 U. S. 
247, 40 L. Ed. 414;

Litchfield v. Rail Road Company, 74 U. S. 270, 
19 L. Ed. 150;

F. C. C. v. Pottsville Broadcasting Company, 
309 U. S. 134, 140, 84 L. Ed. 656.

This Court has stated that the Trial Court may 
take no action inconsistent with mandate of the Appellate 
Court,



27

Fleniken v. Great American Company (C. A., 
5) 142 F. (2d) 938, 939;

See also:
Goldwyn Pictures Corp. v. Howell’s Company, 

(C. A., 2), 287 Fed, 100;
Thornton v. Carter (C. A., 8), 109 F. (2d) 316, 

321;
Herzbergs, Inc., v. Ocean Corp., (C. A. 8), 

132 F. (2d) 438.

Certainly the mandate of the Supreme Court re­
quired some further hearing as to the conditions prevail­
ing after the case was remanded, and applicability of the 
School Segregation decision to the issues involved in this 
case. The failure of the Trial Court to follow the direc­
tions in compliance with mandate consitutes a reversible 
error. 5 C. J. S., Page 1557, Section 1993 and cases cited. 
Even without any request from Appellants’ counsel the 
Court should have fixed the case for further hearing and 
testimony instead of placing it upon a motion calendar 
of the Court for argument. As will be hereinafter shown 
the Federal Rules of Civil Procedure require such action 
on the part of the District Judge.

On the remand of the case the District Judge must 
hear evidence on issues not decided by the Appellate Court 
and make new findings. United States v. Certain Parcels 
of Land, 121 F. Supp. 268; Matley v. Giesler, 202 F. 738. 
As stated in 5 C. J. S., 1551, Section 1990:

“ On a remand of the case by the appellate 
court, for retrial the situation of the parties and 
the condition of the case with respect to the man­



28

ner in which the new trial shall be conducted is 
practically the same as if a new trial had been 
granted by the trial court, except that the new trial 
may and should be conducted in accordance with 
such views or directions as have been expressed by 
the appellate court. * * * The parties are on the 
second trial entitled to an opportunity to introduce 
new evidence to establish a new state of facts.”

The foregoing text is supported by decisions of this 
Court and other Courts of Appeal. See:

Roth v. Hyer, (C. A., 5), 142 F. (2d) 227;
Fleniken v. Great American Indemnity Com­

pany, (C. A., 5), 142 F. (2d) 938-939;
Madden Furniture Company v. Metropolitan 

Life Insurance Company, (C. A., 5), 127 F. 
(2d) 837;

United States v. Iriarte, (C. A., 1), 166 F. 
(2d) 800-803;

Shell Petroleum Corp. v. Shore, (C. A., 10), 
80 F. (2d) 785;

Illinois Power & Light Company v. Hurley, 
(C. A., 8), 49 F. (2d) 681, 683;

See also the judgment of the Supreme Court 
in Slocum v. New York Life Insurance Com­
pany, 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 
879.

ERRORS OF PROCEDURE:

Since the situation of the parties and the condition 
of the case after remand by the Supreme Court is the 
same as if a new trial had been granted, and since the



29

District Judge must after such a mandate hear evidence 
on the issues involved, particularly such new issues as 
have been injected into the case by the mandate of the 
Appellate Court, the District Judge should have proceeded 
in accordance with the Federal Rules of Civil Procedure. 
The errors in this respect are enumerated in our petition 
for rehearing and are forcefully discussed in the dissent­
ing opinion. We will therefore not discuss these objec­
tions in detail but will attempt briefly to supplement some 
of the points raised in the dissenting opinion.

The motion filed by Appellee to reinstate the pre­
liminary injunction specifies no grounds whatever for the 
motion. However, Rule 7 (b) of the Federal Rules of 
Civil Procedure is mandatory in this requirement. As 
stated in Federal Practice and Procedure, Volume 1, page 
405:

“ A motion must specify with particularity 
the grounds upon which the motion is based and set 
forth the relief or order sought. These require­
ments are mandatory; compliance is essential to 
orderly procedure.”

Steingut v. National City Bank, 36 F.
Supp. 486.

This procedure is just as necessary on a remand of 
the case by the Appellate Court as it is on original hearing 
since the effect of the remand is to put the case in the same 
situation that it would occupy on a new trial. It is equally 
mandatory that Rule 43 which would require that motions 
which must be supported by evidence shall be heard in 
Open Court either on the testimony of witnesses or on 
affidavits presented in accordance with Rule 6 (d).



30

In view of the wording of the Supreme Court’s man­
date it was also mandatory that the District Judge should 
have made findings of fact and conclusions of law as re­
quired by Rule 52. No findings of fact have ever been 
made with regard to conditions prevailing as of the time 
when the preliminary injunction was reinstated and no 
conclusions of law were made by the District Judge con­
cerning the applicability of the School Segregation de­
cision of the Supreme Court to the case at bar.

Rule 65 (d) states that every order granting an in­
junction and every restraining order shall set forth the 
reason for its issuance. This rule is commented on in Vol­
ume 3 of Federal Practice and Procedure as follows:

“ Rule 65 (d ), prescribing the form and scope 
of an injunction or restraining order, is manda­
tory, and emergency conditions do not warrant a 
departure from its express requirements.”

Shannon v. Retail Clerks Association, (C.
A., 7), 128 F. (2d) 553;

Clorox Co. v. Chlorit Mfg. Corp., 25 F.
Supp. 702;

Ramsey Mfg. Corp., 9 F. R. D. 93;
Brown v. Sacher, 53 F. Supp. 77, 146 F.

(2d) 186.

CLASS ACTION.

An action is not a class suit merely because it is 
designated as such in the pleadings. Whether it is or not 
depends upon the attending facts and there should be 
proof of these facts in order to support a class action. 
Galdi v. Jones, (C. A., 2 ), 141 F. (2d) 984; Pacific Fire



31

Insurance Company v, Reiner, (E. D. La.), 45 F. Supp. 
703; Speed v. Tran. Am. Corp., 5 F. R. D. 56; Moore's 
Federal Practice, 2nd Ed., Vol. 3, Paragraph 23.06.

There is no allegation in the Complaint and there 
is no proof in the record of this case that any other negro 
has made application for the combined courses which 
Plaintiff wishes to pursue. Nor is there any proof that 
any other negroes would make application for this com­
bined course if they were permitted to do so.

Rule 23 (a) permits a class suit only when persons 
constituting the class are so numerous as to make it im­
practicable to bring them all before the Court. Yet there 
is not a word of evidence that any one other than the 
Plaintiff desires to pursue this particular course of study.

The Supreme Court of the United States in the 
case of McCabe v. A. T. & S. F. Rwy. Co., 285 U. S. 151, 
59 L. Ed. 169 appropriately stated that the essence of the 
constitutional rights under the Fourteenth Amendment is 
a personal one and went on to say that a sweeping injunc­
tion should not be issued unless evidence is presented to 
show the need for it. The Court said:

“ The desire to obtain a sweeping injunction 
cannot be accepted as a substitute in compliance 
with the general rule that the Complainant must 
present facts to show that his individual need re­
quires the remedy which he seeks.”

In Williams v. Kansas City, 104 F. Supp. 848, 205 
F. (2d) 47, Plaintiff sought a class injunction for an al­



32

leged invasion of his constitutional rights under the Four­
teenth Amendment, but the District Judge said:

“We rule that Plaintiffs may maintain the 
instant action in their own behalf, but the same can­
not be presented as a pure class action.”

Plaintiffs in these segregation cases have greatly 
abused the privilege of asking for a judgment in behalf 
of all other negroes similarly situated. They usually al­
lege in the language of Rule 23 (a) that they represent 
persons constituting a class so numerous as to make it 
impracticable to bring them all before the Court. Such an 
allegation was made in the case of Wilson v. Board of Su­
pervisors of L. S. U., 92 F. Supp. 986, decided in 1950. 
Five years have passed since that decision and only two 
negroes have registered and completed their courses in 
the law school at L.S.U. None have enrolled at the regu­
lar sessions of the school since the Fall of 1953 and none 
are enrolled presently. The statement that Plaintiff in 
that case represented a numerous class was not true nor 
is it true here. To date no negroes other than the Plain­
tiff have sought admission to the combined courses which 
constitutes the subject of this litigation, and the Plaintiff 
does not desire admission now.

As a matter of fact, this entire litigation has be­
come moot. A newspaper article date-lined at Baton 
Rouge, Louisiana, September 15, 1955, states that the 
plaintiff has not registered for this school term at L.S.U. 
because he prefers to continue his studies in education at 
Xavier University in New Orleans. If this be true, then 
there is no need for an injunction to permit his enrollment 
at L.S.U. Since there is now no suitor for the so-called 
numerous class referred to in the complaint, the Court



would be enacting legislation instead of construing the 
law if it entered a final decree for the unrepresented class. 
This furnishes additional reason and proof why the lower 
Court should consider “ conditions that now prevail.”

THERE IS NO EVIDENCE IN THE RECORD TO 
SUPPORT THE FINDINGS AND CONCLUSIONS 

OF THE DISTRICT JUDGE.

On the original hearing in this case two years ago 
the Plaintiff and Appellee offered no evidence whatever. 
The minutes of the Court will reflect this fact. It is true 
that Plaintiff took some depositions but these depositions 
were never offered as evidence.

A deposition which has not been offered in evidence 
is not evidence and should not be transmitted as such 
with the record on appeal. In the case of United States 
v. Brookhaven, 134 F. (2d) 442, 447, this Court makes 
the following statement with reference to the deposition 
which was not offered in evidence:

“ Unless someone offered it in evidence on 
the trial it was not evidence in the case, nor was it 
proper to be transmitted as such with the record 
on appeal.”

Not only did the Plaintiffs offer no evidence on the 
first hearing of the case but no evidence whatever was of­
fered by either party after the case had been remanded. 
Even if there had been evidence on the original hearing 
to support the findings and conclusions of the District



34

Judge none have been offered to sustain the action of the 
Judge in reinstating the preliminary injunction. Rule 
52 of the Federal Rules of Civil Procedure reads in part 
as follows:

Rule 52

(a) Effect. In all actions tried upon the 
facts without a jury or with an advisory jury, the 
court shall find the facts specially and state sep­
arately its conclusions of law thereon and direct 
the entry of the appropriate judgment; and in 
granting or refusing interlocutory injunctions the 
court shall similarly set forth the findings of fact 
and conclusions of law which constitute the grounds 
of its action. Requests for findings are not nec­
essary for purposes of review. * * *

(b) Amendment. * * * When findings of 
fact are made in actions tried by the court with­
out a jury, the question of the sufficiency of the 
evidence to support the findings may thereafter be 
raised whether or not the party raising the ques­
tion has made in the district court an objection to 
such findings or has made a motion to amend 
them or a motion for judgment. As amended Dec.
27, 1946, effective March 19, 1948.”

We find the following comment on the above quoted 
Rule in Federal Practice and Procedure, Volume 2, Page 
828:

§ 1129. Objection and Amendments



35

“ Rule 52 (b) permits the unsuccessful party 
to raise on appeal the question of the sufficiency 
of the evidence to support the findings 'whether or 
not the party raising the question has made in the 
district court an objection to such finding or has 
made a motion to amend or a motion for judgment’. 
In other words, when findings of fact are made in a 
case tried without a jury the sufficiency of the 
evidence to sustain the findings may be challenged 
without having made ‘objection to such findings’ or
‘motion to amend them or a motion for judgment’.” 
* * *

The foregoing text is supported by the following 
decisions:

Monaghan v. Hill, (C. A., 9), 140 F. (2d) 31;
Imperial Irrigation District, 38 F. Supp. 770, 

136 F. (2d) 539, Cert, den., 321 U. S. 787, 
88 L. Ed. 1078.

The general Rule on this subject is thus stated in 
5 C. J. S., 1554-1555:

“ All issues open for consideration on the re­
trial must be proved by evidence produced in that 
trial, for the evidence introduced upon the former 
trial is not a part of the record in the sense that 
it may be considered on the second trial without 
being offered in evidence; and a decision by the ap­
pellate court that the proof made on the former 
trial of certain facts is sufficient to establish a



36

particular issue does not do away with the neces­
sity for reoffering the proof on those facts on the 
second trial, although when proof of such facts is 
made a case is made out in accordance with the de­
cision of the appellate court.

“ The evidence received on the first trial is 
admissible, but the parties are not confined to this, 
and are entitled to introduce additional evidence, 
even as to matters occurring between the date of 
the original judgment or decree and the hearing 
after remand, and to explain the testimony given at 
the former trial.”

The mandate of the Supreme Court certainly left 
open for consideration the conditions prevailing at the 
present time and it required the District Court to deter­
mine whether or not the facts which might develop on 
the remand of this case would justify some different con­
clusion in view of the Supreme Court decision in the School 
Segregation Cases.

THE SCHOOL SEGREGATION CASES ARE NOT 
DECISIVE OP THE ISSUES IN THIS CASE.

There are differences in the facts involved in the 
School Segregation Cases and those that are involved 
here. Those cases related to elementary education in the 
public schools and were decided by the Supreme Court on 
the basis of sociological and psychological conditions exist­
ing in Kansas, Delaware, and other states. The Supreme



37

Court has stated that the power of that Court only extends 
over, and is limited to, the particular case before it.

American Book Co. v. Kansas, 103 U. S. 49, 
48 L. Ed. 613.

The Court has also stated that the language of an 
opinion must be limited to the facts and issues involved in 
the particular record under investigation.

German Alliance Insurance Co. v. Home Water 
Supply Co., 226 U. S. 220, 57 L. Ed. 195;

Parsons v. District of Columbia, 170 U. S. 45, 
42 L. Ed. 943;

White v. Aronson, 302 U. S. 16, 82 L. Ed. 20;
Armour & Co. v. Wantock, 323 U. S. 126, 89 

L. Ed. 118.

Apparently the Supreme Court did not think that 
the School Segregation Cases were decisive of the issues 
here because its mandate specifically directed the District 
Judge to reconsider the issues in the case at bar in the 
light of the decision in the Segregation Cases giving due 
consideration to conditions that now prevail. As pointed 
out in the dissenting opinion if the Supreme Court had in­
tended that Appellee should be admitted to L.S.U. without 
further hearing because of the segregation decision it 
would have reversed the judgment of the Court of Appeals 
and entered an order reinstating the judgment of the 
District Court,



38

For the reasons given above it is respectfully sub­
mitted that the application for rehearing should be 
granted.

CONCLUSION.

FRED S. LeBLANC, 
Attorney General of La. 

W. C. PERRAULT,
First Asst. Atty. Gen’l., 

J. CLYDE PEARCE, 
Asst. Attorney Gen’l.,

J. H. TUCKER, JR., 
FRED BLANCHE, 
ARTHUR O’QUIN, 
VICTOR A. SACHSE,
R. B. SADLER, JR.,

W. SCOTT WILKINSON, 
LEANDER H. PEREZ, 
C. C. BIRD, JR.,
L. W. BROOKS,
JAMES R. FULLER,
C. V. PORTER,
H. C. SEVIER,
A. J. SHEPARD, JR., 
GROVE STAFFORD, 
OLIVER STOCKWELL, 
WOOD THOMPSON, 
Attorneys for Appellants.

TAYLOR, PORTER, BROOKS,
FULLER & PHILLIPS,

1106 Louisiana National Bank Building, 
Baton Rouge, Louisiana;

WILKINSON, LEWIS & WILKINSON,
P. 0. Box 1707,
Shreveport, Louisiana,

Of Counsel.



39

CERTIFICATE.

I hereby certify I have this day served the fore­
going Petition for Rehearing and Brief in support thereof 
by mailing a copy thereof properly addressed, postage 
prepaid, to counsel of record for Appellee as follows:

A. P. Tureaud, Sr.,
1821 Orleans Avenue,
New Orleans, Louisiana;
U. S. Tate,
1718 Jackson Street,
Dallas, Texas;
Robert L. Carter,
Thurgood Marshall,
107 West 43rd Street,
New York, New York.

Dated this ____  day of September, 1955.

Counsel for Defendants and Appellants.